About this case:

• Citation:
  4104609/2022
• Judgment:
  External link
• Court:
  Employment Tribunal (Scotland)

Nikolay Nikolov was employed by Craigatin House & Courtyard Ltd from September 2021 to July 2022. He argued that he had not been given adequate notice of specified leave days before taking a holiday, and that any payments received had been incentives to remain with the company.

The case was heard by Employment Judge Russell Bradley. The claimant appeared in person, while the respondent was represented by company director Lynne Fordyce.

Not received notice

The claimant started work with the respondent on 21 September 2021. When interviewing for the role, he was told by Ms Fordyce and her partner that the guesthouse closed for two days per month as well as the whole of November and January and part of the Christmas period, with holidays expected to be taken in those periods. He was not issued with a contract of employment, but it was understood that his typical workday began at 7:30am and ended at about 2:30pm.

On 4 July 2022, the claimant’s employment came to an end after he gave notice to terminate the contract. None of the wage slips he was given for his period of employment showed any of his pay as being holiday pay. While he had taken holidays, including returning to his native Bulgaria, during times the guesthouse was closed and received paid leave, it was the claimant’s belief that he was being paid in that period as an incentive in order to persuade him to return to work when the premises re-opened.

The claimant sought the sum of £1,148.40, this representing the holidays that he had earned through his period of employment. It was argued by the respondent that, in the circumstances, the claimant had actually been paid for more leave than that to which he was entitled, that being 5.6 weeks in a year. While their PAYE system did not allow for a ‘holiday pay’ option to be inputted, the claimant had nonetheless received holiday pay during the periods the premises were closed.

It was accepted by the Tribunal that the claimant had received a notice of specified leave days that complied with Regulation 15 of the Working Time Regulations 1998, albeit that notice was handwritten. However, there was a dispute as to when this document was issued, with the claimant averring that he did not receive it until December 2021 and the respondent arguing it was issued in September 2021.

Accepted the evidence

in his decision, Employment Judge Bradley observed: “For the purposes of determining any period of accrued, untaken and unpaid leave as at 4 July 2022 the key issue is; when was the hand written document issued? I have accepted the claimant’s evidence that he did not receive it until his return to work in December 2021. That being so, and again applying Regulation 15(4)(a), it had not been issued sufficiently early for the period 2 January to 11 February 2022 to be regarded as a period of paid leave.”

Explaining why he had not accepted the evidence of the respondent, he said: “In deciding this factual dispute I took into account; that the respondent’s evidence differed from what it said in its ET3 form (that it was issued at interview); that no copy was kept, despite the ‘system’ for staff receiving a copy having been in place for some time; that the respondent was not able to vouch in any other contemporaneous way the date it relied on; that it was open to the respondent to have handwritten on any payslip that pay was ‘holiday pay’ when that was its understanding, but did not; and the claimant’s evidence that had he been provided with the dates in writing earlier he would not have accepted the job.”

He continued: “Separately, I believed the claimant when he said that he was first given a copy on his return after 6 December. The effect is therefore that while the claimant was paid in the period 2 January to 11 February 2022 that was not a period of paid leave for the purposes of the Regulations.”

Employment Judge Bradley concluded: “By 4 July, the claimant was being paid consistently £420.00 per week. His rate of pay (albeit not shown on any payslip) was £10.00 per hour. He was therefore working 42 hours per week. The respondent’s evidence was that he was paid for working between 7.30am and 2.30pm, i.e. 7 hours per day. His gross pay per day was therefore £70.00. He is thus entitled to £1085.00 in respect of the 15.5 days accrued and untaken as at 4 July, subject to deductions for income tax and national insurance contributions.”

The Tribunal therefore ordered the respondent to pay the claimant the sum of £1,085.