IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
Jacks Limited t/a the Tamarind
Reference:  TRE147
Hearing Date: 17th
C R Davies, Deputy Chairman
For the Claimant: Mr N Le Cornu
For the Respondent: Mr C Sprent
The Tribunal has found that the Claimant is entitled
to the sum of £620.70
in holiday pay.
Mr Choudhury brought claims for holiday
and bank holiday pay in the total sum of £11,181.76. The claim covered a period from 2009
- The history of this case is complicated for the reasons set out
below. The Claimant was
employed as a manager by the Respondent company but he is also a beneficial
shareholder of it. The Claimant resigned from his job on 2nd
May 2016. He attempted to
bring a claim for constructive unfair dismissal but this claim was struck
out as it was issued out of time. He remained the
beneficial owner of shares in the company and for the purposes of this
judgment I refer to him as a shareholder.
- This case was essentially a dispute between shareholders
about their respective financial contributions to the business, and what
had been agreed between them as shareholders in relation to holiday pay
- The Complainant said that he was entitled to four weeks paid leave
each year in accordance with the terms of his employment contract. He sought payment for bank holidays
that he had worked. He had
thought that holiday money was being stored up for him to claim at a later
- The Respondent defended the claims on the basis that Mr Choudhury
(as a shareholder) had agreed that his holiday pay would be used to pay
off funds due to other shareholders who had provided cash investments,
this was to be done via a loan account. Bank holidays had never been
- On 27 November 2009 the Claimant, Christopher
Sprent, Seamus Gallagher and Raj Uddin became equal shareholders in Wild
Jacks Limited. They
established a restaurant. Each shareholder brought a different set of
skills to the business. The Claimant and Raj Uddin had experience in
running a restaurant; Christopher Sprent and Mr Gallagher provided working
capital and investment and had business experience. Mr Sprent and Mr Gallagher provided
the initial funding with the expectation that the business would repay
them within two to three years of trading. According to Mr Sprent it was
agreed that if the business failed the Claimant and Mr Uddin would each be
responsible for repaying to Mr Sprent and Mr Gallagher 25% of the funds
due to them by the business. By 2011 Mr Sprent and Mr Gallagher
felt that they had contributed sufficient resources and that the business
needed to stand on its own two feet.
They insisted that moving forwards the partners would have to make
an equal contribution to future funding. Between 2012 and 2014 Mr Uddin and
Mr Choudhury fell out and their working relationship became very
difficult. Mr Uddin left the
restaurant in or around August 2014 and claimed unfair dismissal.
- In 2015 the Complainant was a witness for the company in the Tribunal
case brought by Mr Uddin. Mr
Uddin also brought a claim for holiday and bank holiday pay. The witness statement produced by
Mr Choudhury for the 2015 hearing acknowledges the significant investment
made by two of the shareholders.
He stated that for three years he and Mr Uddin had agreed not to
take any holiday and did not always take their full wages.
- The employer’s defence to Mr Uddin’s claim for holiday
pay was that in 2011 the four shareholders had agreed that additional
funding for the business had to be provided in equal proportions. Mr Choudhury and Mr Uddin agreed
that their pay in lieu of holidays and the shortfall in any wages would be
credited to loan accounts within the business so that they would be
matching the financial support provided by the other two
entitlement was paid ‘in lieu’, but the amount due to Mr
Choudhury and Mr Uddin was essentially paid into the business at their
direction and put against a loan account. In 2015 Mr Choudhury aligned
himself with the employer’s position.
- The Employment Tribunal dismissed Mr Uddin’s claim for holiday
pay finding that it was not proven and it was noted that the tribunal had
preferred the evidence given on behalf of the respondent, including
presumably the evidence of Mr Choudhury.
- As mentioned above there is no written shareholders agreement and
there are no accounts. That is unhelpful.
- It was agreed that the weekly wage was £372.44 at the time
when the employment came to an end (£62.07 per day).
- The Claimant did have a statement of employment terms dated 2009
which describe him as a “waiter”. There is provision for holiday pay
and it is to be noted that the claim has been brought for contractual
holiday pay. The provision
“Your annual holiday entitlement is 4 weeks
paid leave per year. Holiday
entitlement must be cleared within the year. No holiday entitlement can be carried
over to the next year”.
I was told that Mr Choudhury did not query that provision. He said that he was told his holiday
money was safe and being built up.
Mr Choudhry is claiming payment in lieu of a holiday entitlement
calculated over a six year period. He resigned in February 2016 and the
effective date of the termination was 2nd May 2016. The holiday year would run from 1
December being the anniversary of employment (so 5/12ths of an annual holiday
period were worked by the anniversary of employment in 2016). He worked a six
day week and five months of his holiday entitlement would add up to 10
There is no contractual entitlement to double pay when working bank
holidays. The contract notes that the requirement to work 6 days a week could
include bank holidays. It was
common ground that Mr Choudhry was managing the business and he was essentially
in charge of his working hours. The
point had not been queried during the employment.
- I was provided with two joint bundles of
documents. I heard evidence
from the Claimant and from Mr Sprent.
- It was clear from the Claimant’s written
and oral evidence that the shareholders dispute is ongoing, fuelled no
doubt by the lack of proper documentation. It is not for the Employment
Tribunal to try to resolve that dispute. We can only consider the claims
brought by Mr Choudhry in his capacity as an employee.
- In his witness statement for this hearing the Claimant said that in
the early years the business could not afford for him to take much
holiday, so it was saved up.
The holiday entitlement was accumulated on the understanding that
the holiday could be taken later, or would be paid in lieu later. This
clearly contradicts the contract which the Claimant signed. There is no
recorded variation to that contract.
Mr Choudhury thought that the money was being held in a bank
account for that purpose, not in a loan account. He said that there was never any
discussion as to how the entitlement was being accumulated and no loan
account was mentioned until 2015 when Mr Uddin’s claim came before
the Tribunal. This
contradicted the evidence given by Mr Choudhury in 2015. Reflecting on that evidence Mr
Choudhury said as follows in his witness statement:
“Chris Sprent told me if asked by the Judge at the Tribunal, I
should say that my holiday money, and that of Raj Uddin, was held in a loan
account. When asked by the Judge at
the Hearing, that is exactly what I said.
I went along with the story as I believed it was in the best interest of
the business. Chris Sprent made me a liar.”
- Thus the Claimant now says that he was encouraged to mislead the
Employment Tribunal in 2015. When giving evidence to me he said that he
thought his holiday was being saved up in an account, or that he could
claim the holiday.
- Mr Sprent gave evidence on oath. His evidence appeared to be
consistent with the evidence that he had given to the Tribunal in
2015. He and Mr Gallagher had
invested in the business and the business owed them a considerable amount
of money which was due in equal shares from the four shareholders. According to Mr Sprent, Mr
Choudhury still owes more than £36,000 to the investors taking into
account the amounts which he had paid off by agreeing to credit his
holiday pay to his loan account, but according to Mr Sprent only 11 weeks
of holiday pay had been credited to the loan along with some unpaid wages. Mr Sprent pointed out that between
2009 and the end of 2016 Mr Choudhury had been perfectly happy with the
arrangement in place for his holiday entitlement and had not queried it.
- Mr Sprent produced the cash books for the business to show how he
had accounted for the holiday, and for various other adjustments. The Claimant argued that the
figures were inaccurate and the loan account a fabrication.
- I have reached the following conclusion on the facts:
- Mr Choudhury was a beneficial owner of the business. To the extent
that he worked bank holidays this appears to have been his choice and
there is no evidence that he ever raised the issue of bank holiday pay. There is no evidence that he was specifically
required to work particular bank holidays by the employer and no
independent record of the bank holidays worked.
- Under his employment contract Mr Choudhury was not able to carry
forward any holiday entitlement that he did not claim/use during the year. There is no credible evidence of
an agreed change to that contract.
- Mr Choudhury was entitled to be paid for the holiday entitlement that
had been accrued in 2016. Mr
Sprent said in his witness statement that only 11 weeks holiday pay had
been “paid” via a credit to the loan account and I cannot be satisfied
that the employer has paid a proper sum in lieu of the 2016 entitlement.
- There is a dispute as to whether Mr Choudhury was
“paid” his holiday pay in earlier years via a payment made to
a loan account on his behalf.
The employer would say that this was agreed and that they are
supported by the documentation, including the documents and evidence from
the 2015 hearing. Mr
Choudhury would say that he was told the money was being put by for him. This is a dispute between the
shareholders as to how this money has been accounted for in the business which
it is not my place to resolve. I note however that Mr Choudhury does not
seem to have challenged the absence of holiday pay over a six year period
until after his departure from employment.
- Article 11 of the Employment (Jersey) Law 2013 sets out
the law on annual leave and bank holiday pay. The Claimant was entitled to the
holiday set out in his contract.
That does not mean that an entitlement that is not taken cannot be
lost. Employees are entitled
to bank holidays or to a day in lieu when required to work them. I am not satisfied that the
Complainant was required to work bank holidays if he chose not to.
- Article 14 of the Employment (Jersey) Law 2013 entitles
the Applicant to compensation in lieu of untaken leave accrued during the
year in which he left employment.
- I have considered the evidence that I have heard and
- I award the sum of £620.70 to the Claimant in
respect of his 2016 holiday entitlement. I note that the Claimant may bring
the shareholders’ dispute to the Royal Court in due course.
Advocate C R Davies, Deputy