The Employment Appeal Tribunal (EAT) has rejected an appeal against the dismissal of an employee’s complaint that unauthorised deductions had been made from his wages because he did not receive an additional day’s pay or a day off in lieu when he worked on bank holidays.
The employee’s contract of employment stated that he could be required to work on bank holidays, and that he would be paid at double time for those days and given an alternative day of leave in lieu.
When he worked on a bank holiday he received an extra day’s pay in addition to his normal monthly salary. He took the view that this only amounted to single pay and brought Employment Tribunal (ET) proceedings claiming unauthorised deductions from wages. The ET found that he was mistaken about this, concluding that his normal salary included normal pay for bank holidays worked, and the additional day’s pay made it double pay.
The ET found that he could not bring a claim for unlawful deduction from wages in respect of a failure to give days off in lieu, because a day off in lieu does not satisfy the definition of wages. The ET also rejected his claim that he had not been permitted to carry over untaken holiday leave. In each holiday year he had taken his leave entitlement under Regulation 13 of the Working Time Regulations 1998, and the right to carry over untaken holiday leave does not apply in respect of additional leave under Regulation 13A.
He appealed against the decision in respect of failure to provide days off in lieu. Rejecting his appeal, however, the EAT could see no error of law in the ET’s determination of his complaint. He also asserted that the bank holiday term in his contract of employment and associated documents constituted a workforce agreement that permitted him to carry over unused leave, pursuant to Regulation 13A(7). However, that argument had not been raised before the ET, and the EAT did not consider that there was any good reason why it should now be permitted on appeal.