Niall McMullan, Associate Partner, highlights the importance for employers of the creation, maintenance and retention of accurate employee records
The importance of being able to produce direct documentary evidence is significant in any Employment Tribunal case. During the early stage of “Discovery”, sufficient documentation may remove confusion and doubt surrounding facts which are in dispute between the parties.
The recent decision of Meabh Harvey v Metro Hair Beauty Limited 2228/16IT is a stark reminder for Employers to retain sufficient documentary evidence regarding their Employees, including records in relation to holiday pay. The Claimant in this case alleged that she was owed monies for outstanding holiday pay which she had accrued but had not yet taken at the date of termination of her employment.
The Claimant commenced employment with the Respondent in January 2016. Due to lack of documentary evidence, there was some dispute between the parties as to the Claimant’s exact start date.
The Claimant argued that she began working for the Respondent on Wednesday 6th January 2016 and produced a personal diary entry which stated “Metro 10 – 8.30 1st Day”. On the other hand, the Respondent’s contention was that the Claimant did not start work until 16th January 2016 and relied solely on a spreadsheet compiled by his accountant which showed the Claimant’s first payslip was dated 23rd January 2016.
The Tribunal accepted the Claimant’s evidence regarding her start date and found, as a fact, that the Claimant’s start date was 6th January 2016.
In relation to holiday pay, the Tribunal in its decision noted that Respondent’s spreadsheet “contained no indication that the Claimant received holiday pay on any occasion when she took time off from her regular shifts”. The Respondent accepted this point, stating that “he would look at the matter at the time to see if he felt the employee was entitled to paid holidays”.
The Tribunal determined that the Respondent’s spreadsheet did not amount to “direct documentary evidence” and expressed they were “surprised by the Respondent’s failure to keep any records relating to holiday pay”.
The Tribunal held that under Regulation 13 of the Working Time Regulations (as amended) the Claimant was entitled to a total of 5.6 weeks paid leave (pro rate) and the Respondent, under Regulation 14, must make a payment in lieu of leave accrued but not taken.
The Respondent was ordered by the Tribunal to pay the Claimant the sum of £315.00 in respect of outstanding holiday pay.
Niall McMullan is an Associate Partner in Worthingtons Commercial Solicitors, Belfast, where he specialises in Employment Law including workplace disputes, unfair dismissal, redundancy claims, fair employment, sex, disability, race and age discrimination claims and Public Interest Disclosure.