Alexandru Bucur v The Soho Sandwich Company Ltd

A contractual entitlement to time off in lieu for bank-holiday work is not itself wages for an unauthorised-deduction claim. A claim concerning untaken contractual leave exceeding the entitlement under regulation 13 of the Working Time Regulations 1998 likewise does not fall within that statutory wages jurisdiction.

An appellate tribunal will ordinarily refuse a new argument which could and should have been advanced below, particularly where its determination would require construction of documents not considered by the Employment Tribunal and further evidence. A proposed reliance on a workforce agreement to carry forward additional leave was therefore not entertained.

The claimant worked bank holidays under a contract providing double pay and an alternative day of leave in lieu. He complained that, although he received an additional day’s pay, he had not taken the corresponding day off in lieu. He also contended that additional annual leave had not been carried forward.

The Employment Tribunal dismissed his complaints of unauthorised deductions from wages and under the Working Time Regulations 1998. It found that normal salary plus an additional day’s pay amounted to double pay and that the claimant had taken his regulation 13 entitlement. On reconsideration it revoked a section 1 Employment Rights Act 1996 award because there was no successful underlying claim.

The claimant appealed the substantive decision. The respondent withdrew its separate appeal against the revoked section 1 award with permission. The central issues were whether the claimant could recover for untaken contractual time off in lieu and whether a new carry-over argument based on an alleged workforce agreement could be raised on appeal.

1. Claimant’s appeal dismissed. The Employment Tribunal made no error of law in dismissing the unauthorised-deduction complaint. The claimant did not challenge on appeal the finding that normal salary, together with an additional day’s pay for each bank holiday worked, amounted to contractual double pay.

2. The complaint pursued on appeal concerned the absence of time off in lieu. A day off in lieu does not satisfy the definition of wages. The claim could not therefore be advanced as an unauthorised-deduction claim. The same conclusion applied to untaken contractual leave exceeding the annual-leave entitlement under regulation 13 of the Working Time Regulations 1998. The Tribunal’s approach accorded with King v Sash Window Workshop Ltd [2015] IRLR 348.

3. The asserted entitlement to carry forward additional regulation 13A leave depended on a new contention that contractual and associated documents constituted a workforce agreement under regulation 13A(7). That contention had not been run before the Employment Tribunal. A reconsideration application advancing it had been refused and was not appealed.

4. There was no good reason to permit the new point. The claimant had not complied with section 8.13 of the EAT Practice Direction. Determining the point would require consideration of documents not addressed in the Tribunal’s judgment and was likely to require further evidence. The ground was dismissed.

5. The respondent’s separate appeal against the section 1 award was permitted to be withdrawn.

• Employment Appeal Tribunal: The claimant’s appeal from the substantive Employment Tribunal judgment was dismissed. The respondent was permitted to withdraw its separate appeal against the revoked section 1 award.
• Employment Tribunal: Employment Judge Bartlett dismissed complaints of unauthorised deductions from wages and under the Working Time Regulations 1998. On reconsideration, the Tribunal revoked a £1,929 award for failure to provide a statement of initial employment terms under section 1 of the Employment Rights Act 1996.