Alexandru Bucur v The Soho Sandwich Company Ltd

The Employment Appeal Tribunal dismissed the claimant's appeal against the Employment Tribunal's dismissal of complaints of unlawful deduction from wages under the Employment Rights Act 1996 and complaints under the Working Time Regulations 1998. The EAT found no error of law in the Employment Tribunal's conclusion that where the claimant was paid his normal monthly salary plus an additional day-rate of 112.18 for each bank holiday worked, that amounted to double pay for the bank holiday. The EAT also upheld the Employment Tribunal's conclusion that a day off in lieu is not "wages" for the purpose of an unlawful deduction from wages claim, and that the claimant had not established an entitlement to carry over additional contractual leave under regulation 13A/section 13A(7) WTR because the argument had not been advanced below and was refused on reconsideration.

Background and parties. The claimant (Alexandru Bucur) appealed against an Employment Tribunal decision of Employment Judge Bartlett which had dismissed complaints of unlawful deduction from wages under the Employment Rights Act 1996 and claims under the Working Time Regulations 1998. The respondent was The Soho Sandwich Company Ltd. The claimant also earlier received, and then had revoked on reconsideration, an award of 1,929 under section 1 ERA for failure to provide a statement of initial employment terms; the respondent withdrew its appeal against that reconsideration revocation.

Nature of the claim and relief sought. The substantive complaint was that, when the claimant worked on bank holidays, he was entitled to double pay under his contract and/or to be granted a day off in lieu; he alleged unlawful deductions from wages where an additional days pay was paid but no day off in lieu was taken and also advanced arguments about carryover of unused additional annual leave under the WTR.

Issues framed by the court.

• Whether the payments made (monthly salary plus 112.18 per bank holiday worked) amounted to the contractual "double pay" required by the contract.
• Whether failure to provide a day off in lieu could constitute an unlawful deduction from wages.
• Whether the claimant could carry over additional contractual bank-holiday leave under section 13A(7) WTR or a workforce agreement.
• Procedural: whether arguments about carryover could be first raised on appeal, given they were not run before the Employment Tribunal and a reconsideration application on that point had been refused.

Courts reasoning and disposition. The EAT agreed with the Employment Tribunal that the payments made equated to double pay because the claimants normal salary included pay for bank holidays and the extra day-rate constituted additional pay, so there was no unlawful deduction. The EAT upheld the Employment Tribunals conclusion that a day off in lieu is not "wages" for ERA unlawful deduction purposes and so cannot form the basis of a deduction claim. The EAT accepted the Employment Tribunals reliance on King v Sash Window Workshop Ltd in relation to regulation 13 WTR treatment. The EAT refused to permit the new argument that the contractual bank-holiday arrangements amounted to a workforce agreement permitting carryover under section 13A(7) WTR because that argument had not been advanced below, had been considered and refused on reconsideration, and raising it on appeal would require consideration of documents and evidence not ventilated at the hearing. The appeal was dismissed.

Appeal dismissed. The EAT found no error of law in the Employment Tribunal's findings that the payment of the claimant's normal salary plus a day-rate for bank holidays amounted to double pay, that a day off in lieu does not constitute "wages" for an unlawful deduction from wages claim, and that arguments about carryover under section 13A(7) WTR could not be raised for the first time on appeal after a refused reconsideration.

This is an appeal to the Employment Appeal Tribunal from the Employment Tribunal judgment of Employment Judge Bartlett dismissing complaints of unlawful deduction from wages and breaches of the Working Time Regulations. Case numbers before the EAT: EA-2023-001083-RN (substantive determinations) and EA-2023-000647-RN (appeal against revocation of a section 1 ERA award, which the respondent subsequently withdrew). The EAT delivered judgment in [2025] EAT 40 on 21 March 2025.