The claimant worked as a driver for the respondent from February to September 2016. His claims included a claim that he had been underpaid the National Minimum Wage, and claims for holiday pay and of wrongful dismissal.
At a preliminary hearing the tribunal determined that the claimant was an employee. At a further preliminary hearing, in November 2019, the tribunal gave judgment by consent in relation to the holiday pay claim. The present appeal related to decisions made at a further preliminary hearing in February 2020. The EAT held as follows.
(1) The tribunal had erred by not treating payments made by the claimant to rent his vehicle as reductions, when calculating what he had been paid, for the purposes of his NMW claim. They were clearly expenses ‘in connection with’ the employment for the purposes of regulation 13 National Minimum Wage Regulations 2015.
(2) The same applied in respect of the costs of his uniform.
(3) The tribunal did not err by failing to make a declaration that the claimant’s claim for holiday pay was well-founded. That claim had been disposed of by a judgment given by consent at an earlier hearing pursuant to rule 64. The tribunal had not adjudicated that it was well founded, and, in any event, that judgment could not subsequently be revisited.
(4) The tribunal had erred in dismissing the claimant’s claim for consequential losses (section 24(2) Employment Rights Act 1996) on a factual basis that was mistaken. The claim was ambitious, but needed to be considered afresh by the tribunal on the correct factual basis.
(5) The tribunal did not err in not holding that the respondent was estopped from asserting a different figure for a week’s pay, for the purposes of the NMW, from that which underpinned the calculation of the holiday pay figure which was awarded at the November 2019 hearing. The tribunal had not, at that hearing, adjudicated the amount of a week’s pay, and the judgment by consent stated in terms that the respondent was conceding the holiday pay award only. Nor had the tribunal erred by not revisiting the holiday pay award in light of its determination of the amount of a week’s pay for the purpose of the NMW claim. There was no basis to revisit that award, which had been made in the amount specified by consent.
(6) The tribunal had not erred in concluding that the figures put forward by the respondent for what the claimant had been paid, took account of cancellations and no shows. There was conflicting evidence on the point, and the tribunal considered the state of the evidence on both sides to be unsatisfactory. The assessment of that evidence (or lack thereof) and issues of credibility were a matter for the appreciation of the tribunal. It did not overlook where the burden of proof lay. The EAT could not interfere in its determination on this point.
(7) The claimant had applied for the award of compensation for wrongful dismissal to be enhanced on the basis that the ACAS Code on Disciplinary and Grievance Procedures applied but had not been followed. The tribunal had erred by not considering that issue, and would need to so on remission.
[2021] UKEAT 2020-000383
Bailii
England and Wales
Employment
Updated: 25 December 2021; Ref: scu.669825