Unpaid Wages and Holiday Pay Claim Rejected by Employment Tribunal

OUTCOME: Dismissed

Case No: 3304678/24 10.5 Reserved judgment with reasons – rule 62

March 2017

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: Watford by CVP

On: 3rd and 4th February 2026

Before: Employment Judge Beck

Representation Claimant: [redacted] Respondent: [redacted]

RESERVED JUDGMENT

1. The claimant’s complaint for unlawful deduction from wages relating to unpaid wages is not well founded and is dismissed.

2. The claimant’s complaint for accrued holiday pay is not well founded and is dismissed.

REASONS

Background

1. By claim form presented on the 5/5/24, the claimant brought complaints of unpaid wages for the period May 2021 – December 2023, and the loss of 67 hours of annual leave entitlement which he was not allowed to carry forward from a previous year.

2. The unpaid wages claim, related to payments for unsociable hours. The claimant states he was not paid unsociable hours payments in respect of the start of his shift between 5am and 6am, in relation to over 100 shifts he worked.

3. After the issue of this claim, the claimant resigned from his role as a [NAME] at the respondent, on the 31/5/24. Further proceedings were

March 2017 commenced under case numbers 3302126/24, 6008507/24, 3304178/24, 3304184/24 and 6019339/24 by the claimant.

4. A case management hearing took place before Employment Judge Anstis on the 23/4/25. This case number and the 5 new claims identified above were joined together. Case numbers 3302126/24 and 3304184/24 were stayed, pending determination of the claimant’s appeal in respect of a previous claim under case number 3312517/23. Employment Judge Bansal gave judgment in that case on the 21/5/24, dismissing the claimant’s complaint of unlawful deduction from wages. This was on the basis that the claimant was not entitled to unsocial hours payment enhancements on 4 days holiday leave taken by him. Case numbers 6008507/24, 3304178/24 and 6019339/24 were consolidated. Further directions were made to clarify the 5 new claims, and a CVP case management hearing was listed on the 5/9/25.

5. In respect of this claim, the respondent was ordered by the 30/5/25 to confirm if it accepted whether the claimant worked on any Monday – Friday between May and September 2021 and February 2022 – December 2023 between 5am and 6am, and to explain why the claimant was not entitled to unsociable hours payments in respect of that work. The claimant was ordered to clarify which regulation under the [NAME] he brought his claim for holiday pay by the 30/5/25 and make any amendment application by the 31/7/25. It was noted that the acts referred to in this claim were not said to be acts of victimisation or whistleblowing.

6. The respondent clarified its position in an e mail dated 20/6/25, accepting the claimant worked between 5am and 6am on Mondays to Fridays when he was rostered to do so during May – September 2021 and February 2022 – December 2023. He was entitled to receive unsociable hours enhancement of 1.35 x his basic pay for this [NAME] but instead received an overtime rate of 1.5 x his basic pay. The respondent confirmed their position that the claimant had been paid more than the unsocial hours entitlement.

7. The claimant in his e mail dated 23/7/25 referred to working [NAME] regulations 13(a), 13(A), 14, 15, 15A-F, 16, 16A and 17. He sets out the dates of leave which he states he was not allowed to carry forward; 25/12/23, 26/12/23, 30/12/23, 31/12/23, 3/1/24, 4/1/24 and 5/1/24. He sets out dates between May 2021 and November 2023 when he says he did not receive the unsociable hours payments for each shift between 5am and 6am.

8. A further case management hearing took place before Employment Judge Anstis on the 5/9/25. He allowed an amendment application to this claim, in the following terms; that the 67 hours of annual leave should, if not paid earlier, have been paid to the claimant at the latest, by the end of his employment. A 2-day liability hearing was listed on the 3/4th February 2026, with associated directions, on the basis the claimant would be back in the UK. The respondent was directed it may file an amended response by the 26/9/25. A further CVP hearing case management hearing was listed on the 19/9/25.

2-day hearing 3 / 4 February 2026

Preliminary issues

March 2017 9. The claimant attended the hearing via CVP from a communal area in shared accommodation, which the claimant explained was near Euston in London. He did not have a private space in which to conduct the hearing. Enquiries were made at Watford Employment Tribunal, but they did not have anywhere to accommodate him. Whilst the tribunal were trying to contact the [NAME] Tribunal, being the nearest to Euston, the claimant attended there [APPELLANT], and staff were able to provide a hearing room. (confirmation was provided a room was available for the 4th of February also). This caused a delay to the start of the hearing, which commenced at 12 noon.

10. The respondent provided the tribunal with a 367-page bundle for this final hearing. Also, an unsigned and undated statement from Miss [NAME], and a further updating and amended statement from Miss [NAME], showing tracked changes. I had received a 2-page unsigned and undated statement from the claimant referring to 12 documents, and a further 7 documents. The claimant's statement referred to the respondent tampering with the claimant's evidence and redacting text and stated he did not agree with the contents of the bundle.

11. The claimant referred to his e mail dated 18/12/25 (page 266) providing his statements and documents. He indicated in his statement that his evidence had been tampered with, and text had been redacted from some documents. In view of these comments, I went through documents 1 –12, and 1-7 with the claimant, comparing them to the documents in the bundle.

12. Document 1 was the ACAS certificate in the bundle at page 1, document 2 was the ET1 in the bundle at page 2; document 3 was the ET3 at page 14 of the bundle. The claimant accepted that they appeared to be the original documents. Document 4 is the claimant’s 25- page contract of employment dated 20/7/20; the claimant accepted this was his contract, as it appeared in the bundle at page 140. Document 5 was a copy of the [NAME], which was in the bundle at page 41, which the claimant accepted.

13. Document 6 is the respondents e mail dated 20/6/25 to the tribunal which is in the bundle at page 29. Document 7 is booked leave records, which are replicated in the bundle at page 322, covering the period 1/12/23 - 10/1/24. Mr [APPELLANT] shared a copy of his document 7 on the screen, and I went through the document line by line in comparison to page 322, which showed the document in the bundle was the same as that provided by the claimant. Document 8 is a 1-page document containing leave records. I compared this to page 323 in the bundle, and the claimant accepted it was the same as the respondent’s version.

14. In relation to document 9, this contains [NAME] guidance on holiday entitlement. The claimant said the respondent had lopped off the top and bottom of this guidance where it suited them. [RESPONDENT] pointed out that Mr [APPELLANT] had provided amended versions which included the missing parts in his further documents 1 –7, which had then been incorporated into the bundle at pages 165 –175. I went through this document in the bundle, page by page from 165 – 175, comparing it to Mr [APPELLANT] versions, and the claimant accepted the amendments he requested were now contained in the bundle.

15. Document 10 related to the Court of Appeal judgment in East England Ambulance Service [NAME]. This was replicated in the bundle at page 127; the claimant accepted this. Document 11 was the Case Management Order of Employment Judge Anstis dated 5/9/25, which was replicated in the

March 2017 bundle at page 38. Document 12 was the claimants e mail clarifying his claim dated 23/7/25, which appeared in full at page 31 of the bundle, the claimant accepted this.

16. Document 1 –7 were also referred to in the claimant's statement. Document 1 contained e mails up to the 25/11/25 between the claimant and respondent concerning the bundle. Documents 2 – 7 contained specific pages of the [NAME] holiday entitlement guidance, which the claimant said included the lopped off top and bottom parts to the guidance. As recorded in paragraph 13 above, the respondent had rectified this in the bundle, and the claimant accepted the correct version was in the bundle.

17. The claimant did not point out any other documents or concerns he had about evidence being tampered with or text being redacted. I proceeded on the basis that this issue had now been resolved.

18. The claimant stated he wanted his 88-page document from the [NAME] ([NAME]) to be included in the bundle. I did [NAME] this had been provided with the claimant's statement. This included copies of monthly entries for the claimants' shifts between May 2021 and November 2023. The claimant asked for this to be included in the evidence considered, [RESPONDENT] did not object, and this was provided as a separate 88-page PDF.

Issues

19. A list of issues in respect of this claim had not been drawn up previously. The parties agreed that the issues for determination were;

(1) Whether the claimant was entitled to antisocial hours payments for shifts he worked commencing at 5.00am (for the period 5.00am - 6.00am of those shifts) between May 2021 – September 2021 and February 2022 - December 2023;

(2) Whether the claimant was entitled to carry forward 67 hours of leave outstanding at the end of his leave year on the 6/1/24?

(3) As allowed by Employment Judge Anstis on the 5/9/25, as an amendment, if the 67 hours of annual leave had not been paid to the claimant earlier, should it have been paid to the claimant at the latest at the end of his employment?

20. Employment Judge Anstis in his case management order dated 23/4/25, referred to the periods in relation to the antisocial hours claim as between May – September 2021, and February 2022 – December 2023. The claimant provided some clarity on this and advised me that payments made between September 2021, and February 2022 were the subject of a different claim pursued and were not for consideration as [NAME] of this claim.

Law

Section 13(1) of the [NAME] provides that an employer shall not make a deduction from wages of [NAME] employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract or the worker has previously signified in writing his agreement or consent to the making of the deduction. An employee has a right to complain to an Employment Tribunal of an unlawful

March 2017 deduction from wages pursuant to Section 23 of the [NAME].

Section 23(4A) of the Employment Rights Act (1996) states an Employment Tribunal is not (despite subsection (3) and (4)) to consider so much of a complaint brought under this section, as relates to a deduction where the date of payment of the wages from which the deduction was made, was before the period of 2 years ending with the date of presentation of the complaint.

Section 27 (1) Employment Rights Act (1996) defines wages in relation to any worker means any sums payable to the worker in connection with his employment including (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise. It includes other categories such as statutory sick pay, but excludes any payments within subsection (2). Subsection (2) defines the excluded categories as (a) any payment by way of an advance under an agreement for a loan or by way of an advance of wages (b) any payment in respect of expenses incurred by the worker in carrying out his employment, (c ) any payment by way of pension, allowance or gratuity in connection with the workers retirement or as compensation for loss of office, (d) any pay referable to the workers redundancy and (e) any payment to the worker otherwise than in his capacity as [NAME].

[NAME] 1998

13.— Entitlement to annual leave [ (A1) This regulation applies to— (a) [NAME] in respect of any leave years beginning before 1st April 2024, and (b) [NAME] to whom regulation 15B does not apply in respect of any leave years beginning on or after 1st April 2024. ]1[ (1) Subject to paragraph (5), [NAME] is entitled to four weeks' annual leave in each leave year. ]2[...]3 (3) [NAME]'s leave year, for the purposes of this regulation, begins– (a) on such date during the calendar year as may be provided for in a relevant agreement; or (b) where there are no provisions of a relevant agreement which apply– (i) if the worker's employment began on or before 1st October 1998, on that date and each subsequent anniversary of that date; or (ii) if the worker's employment begins after 1st October 1998, on the date on which that employment begins and each subsequent anniversary of that date. (4) Paragraph (3) does not apply to [NAME] to whom Schedule 2 applies (workers employed in agriculture [ in Wales or Scotland]4 ) except where, in the case of [NAME] partly employed in agriculture [ in Wales or Scotland]4 , a relevant agreement so provides. (5) Where the date on which [NAME]'s employment begins is later than the date on which (by virtue of a relevant agreement) his first leave year begins, the leave

March 2017 to which he is entitled in that leave year is a proportion of the period applicable under [paragraph (1)]5 equal to the proportion of that leave year remaining on the date on which his employment begins. [...]6[...]7 (9) Leave to which [NAME] is entitled under this regulation may be taken in instalments, but– (a) [[subject to the exceptions in paragraphs (14), (15) and (17)]9 , ]8it may only be taken in the leave year in respect of which it is due, and (b) it may not be replaced by a payment in lieu except where the worker's employment is terminated. [...]10[ (14) Where, as a result of taking a period of statutory leave in any leave year, [NAME] is unable to take some or all of the annual leave to which the worker is entitled in that leave year under this regulation, the worker is entitled to carry forward such untaken leave into the following leave year. (15) Where, as a result of taking a period of sick leave in any leave year, [NAME] is unable to take some or all of the annual leave to which the worker is entitled in that leave year under this regulation, the worker is entitled to carry forward such untaken leave into the following leave year provided it is taken by the end of the period of 18 months from the end of the leave year in which the entitlement originally arose. (16) Paragraph (17) applies where, in any leave year, an employer fails to— (a) recognise [NAME]'s right to annual leave under this regulation or to payment for that leave in accordance with regulation 16; (b) give the worker a reasonable opportunity to take the leave to which the worker is entitled under this regulation or encourage them to do so; or (c) inform the worker that any leave not taken by the end of the leave year, which cannot be carried forward, will be lost. (17) Where this paragraph applies and subject to paragraph (18), the worker is entitled to carry forward any leave to which the worker is entitled under this regulation which is untaken in that leave year or has been taken but not paid in accordance with regulation 16. (18) Annual leave that has been carried forward pursuant to paragraph (17) cannot be carried forward beyond the end of the first full leave year in which paragraph (17) does not apply.

13A.— Entitlement to additional annual leave [ (A1) Subject to paragraph (8), this regulation applies to— (a) [NAME] in respect of any leave years beginning before 1st April 2024, and (b) [NAME] to whom regulation 15B does not apply in respect of any leave years beginning on or after 1st April 2024. ]2 (1) Subject to regulation 26A and paragraphs (3) and (5), [NAME] is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2).

March 2017 (2) The period of additional leave to which [NAME] is entitled under paragraph (1) is— (a) in any leave year beginning on or after 1st October 2007 but before 1st April 2008, 0.8 weeks; (b) in any leave year beginning before 1st October 2007, a proportion of 0.8 weeks equivalent to the proportion of the year beginning on 1st October 2007 which would have elapsed at the end of that leave year; (c) in any leave year beginning on 1st April 2008, 0.8 weeks; (d) in any leave year beginning after 1st April 2008 but before 1st April 2009, 0.8 weeks and a proportion of another 0.8 weeks equivalent to the proportion of the year beginning on 1st April 2009 which would have elapsed at the end of that leave year; (e) in any leave year beginning on or after 1st April 2009, 1.6 weeks. (3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days. (4) [NAME]'s leave year begins for the purposes of this regulation on the same date as the worker's leave year begins for the purposes of regulation 13. (5) Where the date on which [NAME]'s employment begins is later than the date on which his first leave year begins, the additional leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (2) equal to the proportion of that leave year remaining on the date on which his employment begins. (6) Leave to which [NAME] is entitled under this regulation may be taken in instalments, but it may not be replaced by a payment in lieu except where— (a) the worker's employment is terminated; or (b) the leave is an entitlement that arises under paragraph (2)(a), (b) or (c); or (c) the leave is an entitlement to 0.8 weeks that arises under paragraph (2)(d) in respect of that [NAME] of the leave year which would have elapsed before 1st April 2009. (7) A relevant agreement may provide for any leave to which [NAME] is entitled under this regulation to be carried forward into the leave year immediately following the leave year in respect of which it is due. [ (7A) Where, as a result of taking a period of statutory leave in any leave year, [NAME] is unable to take some or all of the annual leave to which the worker is entitled in that leave year under this regulation, the worker is entitled to carry forward such untaken leave into the following leave year. ]3 (8) This regulation does not apply to workers to whom the Agricultural Wages (Scotland) Act 1949 applies (as that Act had effect on 1 July 1999).]1

In [NAME] and [COMPANY] 2018 EWCA Civ 2084 CA. [ADDRESS] of Appeal overturned the Employment Appeal Tribunal’s decision and confirmed Employment Tribunals had general jurisdiction to determine and construe

March 2017 contractual terms of employment, in claims brought under section 13 of the Employment Rights Act (1996).

In Chief Constable of the Police Service of Northern Island v [NAME] 2024 ICR 51 SC, the Supreme Court held that there was no requirement as a matter of law for leave from different sources to be taken in a particular order. If it is not possible to distinguish between different types of leave, then the minimum entitlement in EU law, the additional leave allowed by domestic law, and any additional leave allowed by the workers terms and conditions is viewed as a single composite pot.

The EAT considered [NAME] further the case of [COMPANY] v [NAME] [NAME] 2024 ICR 967 EAT. One of the grounds of cross appeal from the claimant was that the tribunal had erred in law, that the respondent was entitled to designate the first 20 / 28 days of a given holiday year as statutory and not contractual leave. HHJ Auerbach at paragraph 92 said ‘it appears to me under the 2004 regulations there is no statutory power for the employer to designate which leave days are to be treated as statutory as opposed to contractual’. In obiter comments he suggested that [NAME] did not preclude the possibility of a contract granting such a power in a given case, provided it did not cause a claimant a disadvantage in relation to [NAME] limits for holiday pay claims, than if the power had not been exercised.

Evidence heard and considered

[APPELLANT] evidence

21. The claimant gave evidence to the tribunal in accordance with his statement, which he stated he wrote on the 18/12/25. He described his shift length as 11 hours, from 5:00 a.m. to 4:00 p.m., on those occasions when he did this shift. Excluding his 30-minute meal break, he was due to be paid for 9 hours basic [NAME], with 1 hour 30 minutes to be paid at a different rate. He accepts the respondent paid him at the overtime rate of x 1.5 of his basic salary between 5.00am and 6.00am, and for 30 minutes between 3.30pm and 4.00pm.

22. The claimant states that his basic hourly rate should have begun at 5.00am, for 9 hours until 2.00pm, allowing for 30 minutes for lunch. The remaining hours of 2.30pm - 4.00pm should have been paid at the overtime rate of 1.5 times the basic rate. The claimant’s complaint is when he undertook shifts starting at 5.00am, the unsociable enhancements of 35% on his basic rate were not applied for that 1- hour period, meaning he has been underpaid. He claims he was entitled to 1.5 hours of overtime at the end of the shift, and the 35% of his basic rate on the first hour of the shift.

23. Page 35 of the bundle was referred to by the claimant in evidence, the claimants e mail dated 23/7/25, detailing the dates on which the claimant states he commenced his shift at 5.00am. Across the period May 2021- August 2021 and February 2022 – November 2023, the claimant detailed the 132 days in total where he alleges he should have been paid the 35% unsociable enhancement on his basic hourly rate for working 5.00am - 6.00am.

24. He referred to his contract of employment at page 140, advising he had a 37 ½ hour contract, and was a band 3. He sought permission to introduce a 1-page document, which was added to the bundle as page 368. Permission was granted,

March 2017 and he explained this document was printed from the [NAME] by him. It contained holiday records since the start of his employment. The entry for 6/1/23 - 5/1/24 shows 267 hours allocated, 200 hours booked, a balance of 67 hours, 34.30 brought forward, and 37.50 hours carried forward. The claimant suggested the respondent had amended their witness statement to allow them not to pay him the 67 hours. The claimant added that the 88 pages of [NAME] entries he produced supported his position, by showing all the shifts he had worked starting at 5.00am.

25. In cross examination the claimant was asked if he accepted (page 145), in his contract under ‘overtime’, where it stated, ‘overtime payments will be made in accordance with the National Terms and Conditions of Service’. The claimant replied that's what it says on the page. [RESPONDENT] asked if the claimant accepted (page 146), that ‘overtime hours are those worked in excess of 37.5 hours a week...averaged across the [NAME] where appropriate’. Mr [APPELLANT] did not accept this saying ‘where appropriate’ was the crucial phrase, advising if he worked 1 hour overtime on a Monday, he should be paid for that, he was entitled to overtime whenever he worked it. When asked if the claimant had any agreement with his manager about overtime, the claimant referred to his contract of employment and said he hadn’t agreed to anything outside his contract.

26. The claimant disputed his shift times were 6.00am - 3.30pm and said his manager had moved them to 5.00am to 4.00pm, as an operational requirement, and he also covered evening, weekend and overnight shifts. He stated that line managers changed the [NAME] after a query was raised about him receiving anti- social hours' payments. In answer to a question from [RESPONDENT], about whether he had evidence of asking his manager for anti- social payments for before the shift, and overtime for the end of his shift, he replied that the evidence was not in the bundle and was not needed. The claimant stated he raised the issue with his line manager and lodged a grievance.

27. [RESPONDENT] asked questions concerning (page 149) his contract, and the meaning of ‘all [NAME]’ under the heading ‘from 1 April 2019’. The claimant stated this meant that he was entitled to a 35% uplift for antisocial hours for all the [NAME] he worked, and he did not have to work his 37.5 hours until it was applicable; it applied to every hour he worked. He did not accept [RESPONDENT]’s assertion it could only apply when 37.5 hours had been worked.

28. The claimant accepted when put to him as an example, at page 282, the [NAME] sheet for June 2023 showed 7/6/23, planned shift of 6.00 - 3.30 and actual shift of 5.00 - 4.00, 1½ hours being paid for overtime. He confirmed his position that his contract entitled him to unsocial hours payment on the 5.00 - 6.00, and then the 1 ½ hours overtime should have been applicable at the end of his shift.

29. The claimant accepted in evidence that the tribunal was concerned with his leave year 6/1/23 - 6/1/24. He could not recall if there was a coronation that year entitling him to an extra day's leave. He accepted his contract provided for 27 days (202 hours) annual leave, and 8 days (60 hours) public holidays. He did not answer the question posed by [RESPONDENT], after an explanation had been provided, as to whether 28 days x 7.5 = 210 hours amounted to his statutory leave that year. The claimant agreed he had carried over 37.5 hours into leave year 6/1/24 - 5/1/25, and 67 hours remained outstanding.

30. [RESPONDENT] asked the claimant if he accepted clause 10.11 of the annual leave policy, (page 218), ‘In the event that staff have not taken their annual leave

March 2017 entitlement by the end of their annual leave year, they should expect to lose unbooked leave in line with this policy’. The claimant stated this was not [NAME] of his contract, as (page 152) of his contract stated, ‘the [NAME] annual leave policy does not form [NAME] of your contract of employment’. He was able to choose whether to agree or not to agree with the policy. He accepted that his leave was cancelled on the 25/12/23, 26/12/23, 30/12/23, 31/12/23, 3/1/24, 4/1/24 and 5/1/24 because he was ill, as reflected in his leave records at page 323.

31. In cross examination regarding carrying leave forward, the claimant was asked if he had made his manager aware he wanted to carry over leave, in accordance with 12.2 of the annual leave policy. (page 220), the claimant said he didn't know if he had. The claimant was asked if he accepted 12.3 of the annual leave policy, that there was no statutory right to carry leave forward; the claimant disagreed, and said he believed he had the right in law to carry leave forward. He did not accept that an employee would take statutory leave first, before contractual leave. He accepted he had booked 200 hours leave and carried forward 37.5 hours. He did not agree with [RESPONDENT] when questioned that 210 hours and the 37.5 hours together meant he had exceeded what could be carried forward. He did not accept that he was only entitled to carry forward his statutory entitlement of 210 hours. He did not accept the ‘toolkit for managing sickness absence during annual leave’ (page 277) applied to him, describing it as neither a policy or [NAME] of his contract.

32. The claimant asked me to consider his [NAME] records, an 88-page document which showed the claimant's shifts for the period May – August 2021 and February 2022 – December 2023. Considering for example page 4, June 2021, this correlated with the claimant's evidence at page 35 of 6 shifts worked in June on the 9/10/11/14/15, with a 5.00am start [NAME]. Recorded against each entry is 1 ½ hours overtime. The claimants planned shift on those dates is recorded at 6.00 - 3.30. Other planned shifts on other dates that month are shown as 12.30 - 9.30, 7.00 - 9.00. Page 81 shows November 2023, and correlates to page 35, showing 1/2/3/22/23/24/27/28 November 2023, 8 shifts worked with a 5.00am start [NAME]. The planned shift is shown as 6.00 - 3.30. Other planned shifts are shown as 4.00 - 2.00.

Respondents evidence – Miss [NAME]

33. Miss [NAME] confirmed the contents of her statement and explained when cross examined that the claimants planned hours on the [NAME] were 6.00 - 3.30. She confirmed the [NAME] recognises 5.00/ 6.00 as overtime, as it is additional hours. It would have required a formal amendment from the claimant's line manager if his shift patterns had been altered to a 5.00am start, as a [NAME] change. She confirmed that no such instruction had been received in relation to the claimant. She confirmed that anti-social hours were paid on planned shifts and were applicable to basic [NAME]. In her opinion, she believed there had been an overpayment to the claimant. In cross examination, she confirmed in principle that an employee could be paid 35% anti-social shift enhancement on the first hour between 5.00am and 6.00am, and then received an overtime payment for hours later in the day.

34. When asked in cross examination if she thought the leave policy was [NAME] of the claimant's contract, she confirmed her belief it was. She confirmed a ‘buy back’ scheme did exist for annual leave not taken, but she had not seen an example of this happening whilst in her role. She confirmed the obligation was on the employee to take responsibility for their annual leave, but did confirm her

March 2017 understanding that managers had discretion, and this could include carrying forward leave more than the 37.5 hours allowed under policy. She confirmed annual leave had been cancelled on the [NAME] for the claimant, because he was covered by a medical [NAME]. In the claimant's case, she confirmed her understanding that because the claimant had taken 200 hours of leave, the first 10 hours of the 37.5 carried forward were statutory hours, and the remaining 27.5 hours were carried forward as contractual leave.

35. [NAME] confirmed that her view, the [NAME] was accurate, as changes in the [NAME] were logged, and [NAME] sheets once authorised were reflected in the [NAME]. The claimant asked [APPELLANT] about page 85 of the [NAME] records he produced, and an entry for the 12/12/23, which showed a 1-hour overtime payment between 5.00 - 6.00 only on that date. He advised [NAME] he was involved in a CVP hearing at Watford Employment Tribunal before Employment Judge Daniels on that date, so how could that record be accurate? [NAME] replied she was unable to comment without further investigations.

36. In relation to the claimant's question about the uses of the phrase ‘all [NAME]’ in his employment contract, page 149, [NAME] confirmed her understanding it applied after contractual hours had been fulfilled, not on an every hour worked basis as the claimant put forward.

Respondent's submissions

37. The respondent referred to the overtime section of the claimant’s employment contract, stating the only interpretation was that overtime payments became payable after the contractual 37.5 hours had been worked. It was not as simple as saying overtime was payable on a Monday, to a shift which had not reached the 37.5 hours required. The contract allowed for the payment of overtime when hours more than 37.5 had been worked and allowed the employer to average out those hours where appropriate. It was pointed out the claimant had not produced any evidence of an agreement with his manager about the hours worked, as overtime and / or anti-social hours, and the claimant stated he did not seek agreement as he had his contract of employment. [RESPONDENT] also referred to the claimant saying he had complained and raised a grievance, but this document had not been submitted as [NAME] of the case. He stated the claimants rostered shifts showed a start [NAME] of 6.00am, and if the claimant was arguing his start [NAME] had been amended to 5.00am, he had had 2 ½ years to try and resolve this with his employers.

38. In respect of the anti-social hours' payments, [RESPONDENT] maintained the respondent’s position that 37.5 hours had to be worked, before the anti-social hours payments became applicable, and rejected the claimants position that it applied to all hours irrespective of where in the week those hours were worked.

39. [RESPONDENT] submitted that the claimant had taken an unusual position in asserting that the annual leave policy was not contractual, and that he could choose whether to follow it. The respondent's position was that the annual leave policy and the sickness absence management policy were both relevant. Paragraphs 10.11 concerning losing leave if not taken, and 12.2, making a line manager aware of a request to carry forward leave were relied on. It was also submitted that the claimant had not provided any evidence he had spoken to his manager, asked them to exercise their discretion.

March 2017

40. In relation to the sickness policy, the respondent's position was the toolkit on managing sickness absence during annual leave was said to apply, particularly paragraph 1.5. [RESPONDENT] pointed out that the only possible interpretation of this was that statutory leave was taken first. He referred to [NAME], and [NAME], accepting [NAME] was authority for the position that there was no statutory power for an employer to say which days of leave were statutory as opposed to contractual. It was also stated in that case that a contract could set out the order leave was taken in, but not if it put the claimant in a less favourable position concerning [NAME] limits, which was not the case with this claimant. He also referred to the claimant stating the policy did not apply to him and was irrelevant, and his lack of cross examination of Miss [RESPONDENT] on this point.

41. The respondent’s position was the claimant had 210 hours of statutory leave and had taken 200 hours of leave that leave year, so could only carry 10 hours of statutory leave forward. Allowing for the extra day’s leave in relation to the king’s coronation, 17.5 hours. This was said to be more than consumed by the 37.5 hours the claimant was allowed to carry forward, and therefore he was not entitled to carry any more leave forward. [RESPONDENT] pointed out that whilst the claimant had put to Miss [APPELLANT] management failings in respect of not amending his agreed hours of work or discussing with him/ considering discretion to carry forward additional leave, the tribunal were not tasked with dealing with complaints about management.

[APPELLANT] submissions

42. The claimant argued the respondent should have notified him he stood to lose his 67 hours, and states leave had been cancelled by manager initials [NAME] on the [NAME], from 2022 onwards. He refers to paragraphs 4 and 5 of his statement as evidence he raised complaints against management. The claimant refers to page 31 in the bundle, his e mail dated 23/7/25 clarifying claims to page 37 as evidence of raising serious issues regarding his court cases. The claimant stated the case is about anti-social hours, not about overtime payments. He pointed out that the respondent's records ended in July / September 2023, because the respondent did not want the tribunal to see documents prior to December 2023. He highlighted [NAME] response in cross examination concerning the payment of anti-social hours’ payments; they could have been made; it was a management issue that they hadn’t been. Also, in respect of not allowing the 67 hours to be carried forward, the claimant referred to section 5.4 of his statement and page 31 / 37 in the bundle; to demonstrate he had raised the grievance, stating [RESPONDENT]’s position that they hadn’t been raised was false.

43. The claimant referred to the abuse issue in respect of the roster, and stated it was a victimisation issue that the timings of his shift were not amended to reflect 5.00am starts. The claimant stated the [NAME] guidance on holiday pay enabled him to carry forward leave because of his sick leave, and the reason this had not been done was due to financial slights on him by management. ‘[NAME]’ in relation to anti-social shift payments entitles the claimant to be paid for every hour worked from 5.00am - 6.00am at 35% plus his basic pay. He questioned why, if the claimant had been overpaid, the respondent was not seeking to recover the overpayments from him. He confirms he believes he was entitled to 1 ½ hours over [NAME] with 35% plus his basic hourly rate for 5.00am - 6.00am, and that there was no evidence to support the disapproval of the 5.00 - 6.00am working arrangement.

March 2017

Findings of facts / conclusions

Anti- social hours payments

44. It is agreed that the claimant was employed between the 6/1/20 and 28/6/24, as a [NAME] for the respondent. This claim was issued prior to the claimant's resignation on the 31/5/24 and relates to a claim for underpayment of wages and not being able to carry forward accrued but untaken annual leave only.

45. The claimant had a permanent contract of employment, as a [NAME], with full [NAME] hours of 37.5, on pay band 3.

46. The parties agreed that the claimant worked from 5.00am to 6.00am as [NAME] of his shift, when he was rostered to do so, during May – September 2021 and February 2022 and December 2023. I accept the claimant's evidence contained in his 88 pages of [NAME] records, showing 132 actual shifts worked on Mondays – Fridays during that period which began at 5.00am. As set out in paragraph 32 above, the dates correlate to those claimed by Mr [APPELLANT] in his details of claim at page 35 of the bundle.

47. I find that the planned shift, recorded in the [NAME] records for those dates the claimant worked from 5.00am to 6.00am as [NAME] of his shift, was 6.00am to 3.30pm. The actual shift is recorded as 5.00am to 4.00pm. Consulting the [NAME] records, these times are recorded consistently in the entries throughout the period May 2021 – December 2023, for the shifts subject to this claim, which are Mondays – Fridays.

48. The parties agreed that the claimant had been paid overtime of 1 hour 30 minutes in relation to all the shifts worked Monday – Friday, which started at 5.00am, 1 hour relating to the period 5.00am - 6.00am, and the rate paid was the overtime rate of 1.5 x basic salary.

49. It was agreed that, if the unsociable hours payment was applicable, it would be paid at 1.35 x basic pay for each unsociable hour, in accordance with the claimant's contract of employment, at page 149.

50. I have noted and accepted, for example, at page 61 [NAME] records (page 282 bundle) for June 2023, show week commencing Monday 12/6/23. The claimant worked 2 actual shifts of 5.00am to 4.00pm on 12/6/23 and 13/6/23. (planned shifts of 6.00 - 3.30) (this forms [NAME] of the claim). The remainder of the week the planned hours for 14/6/23, 15/6/23 and 16/6/23 were 4.00pm to 1.00am, and the actual shifts worked on those days were 4.00pm - 3.00am. At page 65 of the [NAME] records for July 2023, week commencing Monday 3/7/23, the claimant worked 2 actual shifts of 5.00am - 4.00pm (planned shifts 6.00 - 3.30) on the 3/7/23 and 4/7/23, which form [NAME] of his claim. The remainder of the week Wednesday to Friday, planned shifts were 4.00pm - 1.00am, actual shifts 4.00pm - 3.00am. I find the claimant has worked different shift patterns during May 2021 – December 2023, during Monday – Fridays.

51. I find the claimants planned, standard hours of work during the 132 days he claims an underpayment for were from 6.00am - 3.30pm. That is reflected in the [NAME] records the claimant has provided, and [NAME] records the respondent has provided. I have not been presented with any written evidence there has been an

March 2017 agreement between the claimant and his manager, to alter those hours and agree a start [NAME] of 5.00a.m. The claimant stated the move in times was due to operational requirements, I have not been presented with any evidence to support this. If operational requirements had changed, I would anticipate this applied to other staff too and would have been communicated to staff in some way. This is supported by Miss [NAME] evidence, that she was not advised of any [NAME] change to the claimants' hours by his manager, as this would have been reflected on the [NAME] if that was the case, an alteration to his planned hours. I also consider paragraph 50 relevant above, which shows the claimant was working different shift patterns across Mondays – Fridays, which does not support his claim that his shift pattern had been altered to start at 5.00am. I also take into account the [NAME] period to which these complaints relate. The first alleged underpayment dates from May 2021. It is a substantial period of [NAME] for these issues to remain unresolved; I [NAME] the ET1 was issued on the 5/5/24.

52. The claimant has referred to paragraphs 4 and 5 of his statement, to support his position that he says he raised the issue of his start times with management. Paragraph 4 refers to a refusal to carry the 67 hours forward by line management. Paragraph 5 refers to issues about sick pay payable in December 2024, which is not an issue for me to determine. The 132 dates referred to end on the 28/11/23. The claimant also stated he had raised issues in his e mail dated 23/7/25, page 31 of the bundle. This e mail is in response to Employment Judge Anstis directions made on the 23/4/25, requiring clarification of some aspects of this claim, and clarification of other claims. It refers to complaints of discrimination and victimisation dating from 2020 / 2021 in respect of other claims being made, and the withholding of the claimants pay. No further details are referred to of action taken by the claimant in respect of pay withheld. I have not been provided with any copies of grievances lodged, or written complaints made by the claimant to the respondent concerning the payment of anti–social payments for Mondays to Fridays between May 2021 and December 2023. The claimant referred to it being an act of victimisation that his shifts were not amended in his oral submissions, I do not have a complaint of victimisation before this tribunal, and [NAME] Employment Judge Anstis recorded in his order dated 23/4/25, that nothing set out in claim 3304678/24 was also alleged to be an act of victimisation or whistleblowing detriment during May 2021 – December 2023.

53. I have considered the interpretation of page 145/ 146 of the claimant's contract regarding overtime. It states, ‘overtime hours are those worked in excess of 37.5 hours per week irrespective of contracted hours, averaged across the [NAME] where appropriate’. I find that the contract is clearly expressed, 37.5 hours must be worked first by the employee, before overtime hours apply, and then the employer is able to average the overtime hours out across the [NAME] as appropriate. I do not accept the claimant's submission, he is entitled to overtime on any hours he works, for example additional hours on a Monday to attract overtime immediately. The 37.5 hours have to be worked first. This interpretation is supported by the reference in the contract to [NAME] being required to work 37.5 hours before overtime is payable, and page 184, NHS Terms and Conditions of Service Handbook, which states that overtime starts for [NAME] when 37.5 hours have been worked.

54. Whilst the contract states all overtime hours should be agreed with a manager in advance, I accept the claimant's account that he had not agreed anything outside his contract terms with his manager. I find that paragraph 6 of the contract was applicable to the claimant, giving the respondent discretion to average those overtime hours out across the [NAME] where appropriate.

March 2017

55. In respect of unsocial hours payments, the relevant provisions are contained in paragraph 12 of the claimant’s contract, at page 148 of the bundle. It refers to ‘pay enhancements will be given to staff whose work in standard hours, excluding overtime and work arising from on call duties, is carried out in unsocial hours.’ I refer to my findings at paragraph 51 that the claimants planned standard hours of work for those days were 6.00am - 3.30pm. I accept Miss [NAME] evidence that if the [NAME] had been amended, a payment for antisocial hours 5.00am - 6.00am could have been made, but the [NAME] had not been amended, and his standard hours on those dates remained 6.00am - 3.30pm. I have found that there has been no change to the claimant's standard hours. There have been no anti-social hour's payments made because of this, which accords with Miss [APPELLANT] evidence.

56. I do not accept the claimant's argument that he would be entitled to anti- social payments on all hours he worked, regardless of when they were worked, or if they included overtime. The contract at page 148 refers to pay enhancements being given to staff whose work in standard hours is carried out in unsocial hours. In my view, this implies that this will be considered when an employee has performed their standard hours, e.g. 37.5 hours, on those hours only, as it specifically states overtime is excluded. The claimant argues he should receive the anti-social hours payment from 5.00am - 6.00am, and the 1 ½ hours overtime should be moved to the end of the day. In my view, the claimant cannot dictate where the respondent allocates overtime; that is a matter for the respondent, in accordance with paragraph 6 of the contract.

57. I have found the claimant standard hours on the dates in question to be 6.00am - 3.30pm. The claimant would have been entitled to anti-social hours payments as conceded by the respondent; but there had been no amendment of his [NAME] to commence work at 5.00am, which would have enabled this to be paid. I accept the respondent had paid the claimant overtime at a rate of 1.5 x basic pay for this additional hour, which was more than the 1.35 x basic pay he would have received as an anti-social hour's payment. I accept Miss [APPELLANT] evidence that the claimant had received an overpayment. I find he has not received a sum less than he was entitled to and find his claim for unlawful deduction from wages is not well founded and dismiss his complaint.

Carry forward of 67 hours accrued leave

58. The parties agree the tribunal is concerned with the claimant's holiday year from the 6/1/23 - 6/1/24, and the claimant's contract allows for 27 days (202.5 hours) annual leave, and 8 days public holidays (60 hours).

59. I take judicial notice of the fact that an additional one days leave applied in the relevant holiday year, for the Kings Coronation which took place on the 6/5/23. The respondent accepts this, which is reflected in the table produced at page 3 of Miss [NAME] witness statement, which contains a summary of the figures, which were agreed in cross examination by the claimant. The claimant's holiday entitlement for the year was 270 hours. (202.5 + 60+ 7.5) The claimant had also carried over 34.5 hours from the previous year, giving a total of 304.5 hours.

60. It is agreed the claimant took 200 hours of leave in the holiday year, carried over 37.5 hours into holiday year 6/1/24 - 5/1/25, and 67 hours remained outstanding.

March 2017 61. The parties agree that the claimant had initially taken leave on the 25/12/23, 26/12/23, 30/12/23, 31/12/23, 3/1/24, 4/1/24, and 5/1/24. This leave was replaced by sick leave when the claimant became ill and provided a sick [NAME] on the 20/12/23.

62. The claimant’s contract at page 151 contains paragraph 19 ‘annual leave and general public holidays’. It refers to ‘the management of annual leave will be undertaken in line with the [NAME] annual leave policy’. It also refers to the annual leave policy not forming [NAME] of an employee's contract. I have considered the trust’s annual leave policy at page 206. I do not accept the claimant’s assertions that the policy did not apply to him. I have not been advised of any alternative terms which have been agreed between the claimant and respondent, in respect of the claimant’s holiday entitlement. I [NAME] the claimant has been employed by the respondent since 2020, and I have not been informed of any complaints about the operation of the leave entitlement / policy to him prior to this claim. Page 323 contains a full leave record for the claimant dating back to 2/11/20, which I find shows the claimant has been taking his leave in accordance with, and with acceptance of the leave policy.

63. I find that 10.11, 12.1, 12.2, 12.3 and 12.4 of the leave policy are relevant, as 10.11 states that staff should expect to take annual leave up to the end of the annual leave year and expect to lose it unless section 12 applies. Section 12.1 provides for employees to carry over or bring forward up to 37.5 hours annual leave.12.2 states it would be expected for employees wishing to bring forward their leave to make their line manager aware. 12.3 refers to there being no statutory right to carry over leave from one leave year to the next, or receive wages in lieu of this, 12.4 makes it clear it would not be normal practice to buy back unused leave. The claimant stated in cross examination that he did not know if he requested his outstanding leave was carried forward. There are no e mails / letters in the bundle which refer to such a request. The requirement in 12.2 would apply to any request, to either carry forward the 37.5 hours, or the additional 67 hours. The respondent appears to have carried forward the 37.5 hours automatically in accordance with its policy, without any request being made by the claimant.

64. The claimant became ill towards the end of his holiday year on the 20/12/23. He had 7 days leave cancelled and returned to him. It would have been reasonable in those circumstances, to expect the claimant to make a request to the respondent to carry forward these additional hours of leave.

65. I find that the respondent's sickness absence policy, referred to in paragraph 28 of the claimant’s contract, became relevant in December 2023. It states, ‘management of sickness absence within the trust is undertaken in accordance with the trust sickness absence management policy’. I have considered the sickness policy, at page 258, which refers to several associated documents at paragraph 12, including a ‘toolkit for managing periods of sickness absence during annual leave’. The toolkit appears in the bundle at page 277, and paragraph 1.5 is of relevance, because it describes circumstances where a sick employee is unable to carry forward their leave, setting out a policy which allows an employee to carry forward the balance of any untaken statutory 28 days of annual leave. An example is provided, which describes an employee with a 33-day occupational leave entitlement, who has taken 10 days leave, who would be entitled to carry forward the balance of 18 days' statutory leave.

66. I do not accept the claimant’s assertions that the sickness policy did not apply

March 2017 to him, the respondent had acted in accordance with their annual leave policy and had recorded the claimants leave from the 25/12/24 as sick leave, therefore the sickness policy did have application.

67. I have considered the cases of [NAME] and [NAME], and in particular the comments in [NAME] concerning an employer being able to specify in a contract, policy or staff handbook, the order in which leave is taken. I conclude that the respondent has specified, by virtue of paragraph 1.5 of the toolkit, referable to the sickness policy and the claimant’s contract, the order in which leave should be taken in these circumstances. On this basis, the claimant's statutory leave was 28 days x 7.5 hours, which totals 210 hours. He had already taken 200 hours and was allowed to carry forward 37.5 hours. Therefore, he had exhausted his statutory leave at 210 hours and was not entitled to carry forward 67 hours leave in accordance with the respondents' policies.

68. I accept [NAME] evidence, that there may have been some managers discretion to allow the carry-over of more than 37.5 hours, but that what had occurred in this case, the carrying over of 37.5 hours, in the absence of any further discussion with managers, would be what she would have expected to happen, and accords with policy.

69. The claimant has referred to the [NAME] 1998. I [NAME] that in relation to 20 days' leave, regulation 13(9) requires the leave to be taken in the leave year it is due. Provisions in regulation 13 (15) apply to the carry-over of annual leave, when due to sickness it is not possible to take leave. On the basis the claimant had taken at least 20 days of leave (20 x 7.5 =150) in the leave year concerned, and my findings that the claimant’s contract terms specified the order in which leave was to be taken; regulation 13 does not apply to the complaint regarding holiday pay.

70. Regulation 13A applies to the additional 8 days of leave allowed as bank holidays, which equates to 8 x 7.5= 60 hours in this case. Regulation 13A (7) is applicable, because the respondents' policies allow for the carry forward of 37.5 hours of leave. The claimant had already taken 50 hours of his 60 hours of entitlement and has been allowed to carry the remaining 10 hours over as [NAME] of the respondent's policy of allowing 37.5 hours to be carried. Therefore, the remainder of the leave, 67 hours, the respondent provides under the claimant's contract as additional leave. Regulation 13A does not apply to the complaint regarding holiday pay.

71. Regulation 14 WTR deals with termination of employment during the leave year, and outstanding leave and carry forward provisions on termination. As I have determined, the claimant was not entitled to carry forward 67 hours of accrued holiday; it does not apply.

72. Regulation 15 sets out dates on which leave can be taken, and regulation 15A leave within the first year of employment, which are not appliable.

73. Regulations 15B – F detail provisions for irregular hours workers. Regulation 16A deals with rolled up holiday pay for irregular hours workers. The claimant has made brief references to being an irregular hours worker, when cross examining [NAME], and in his statement, in which he stated Employment Judge Daniels on the 12/12/23 had referred to him as an irregular hour's worker. I have read the judgment of Employment Judge Daniels dated 12/12/23, and at no point in his

March 2017 judgment does he make a finding or refer to the claimant as an irregular hour's worker.

74. I have noted the claimant is employed under a contract of employment, with full-[NAME] hours of 37.5 per week. Regulation 15F (1) (a) defines an irregular hours worker ‘in relation to a leave year if the number of paid hours they will work in each pay period during the term of their contract in that year, is under the terms of their contract wholly or mostly variable’. The claimant's contract does not state his hours will be variable each month, he is contracted to work a fixed number of hours per month, 37.5 hours, and in my view would not be deemed an irregular hours worker, therefore regulations 15B –F and 16A are not applicable to him.

75. On the basis I have found that the claimant was not entitled to carry forward the 67 hours of additional annual leave; it did not form [NAME] of his holiday entitlement in the leave year commencing 7/1/24, and therefore would not have been payable at the end of his employment.

Approved by:

Employment Judge Beck

Date 12/2/26

RESERVED JUDGMENT & REASONS SENT TO THE PARTIES

ON 25 February 2026

FOR EMPLOYMENT TRIBUNALS

Case Number: 3304678/24

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

JUDGMENT

The claimant’s application dated 2/3/26 for reconsideration of the judgment sent to the parties on 25/2/26 is refused.

REASONS

There is no reasonable prospect of the original decision being varied or revoked, because:

1. Rule 69 of the Employment Tribunal Rules 2024 requires that an application for reconsideration is made within 14 days of the written record being sent to the parties. The claimant made an application for reconsideration on the 2/3/26, after receipt of a reserved judgment on liability on the 25/2/26. The application for reconsideration is therefore made in [NAME].

2. Rule 70 (1) of the Employment Tribunal Rules 2024 provides:

“An Employment Judge shall consider any application made under rule 69. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. …”

3. The application for reconsideration appears to be made on the following grounds:

(a) Complaints about Employment Judge Anstis and his conduct of previous hearings involving this and other cases;

(b) The disclosure of the claimant’s location during the hearing in the reserved judgment; (c) The respondent tampering with the claimant’s documents that he relied on in the bundle / and additional documents; (d) The summary of evidence in the reserved judgment is inaccurate; (e) The claimant disagrees with some / all of my findings of fact and conclusions reached; (f) The claimant believes I have interpreted the law incorrectly, for example in relation to irregular hours workers; (g) The claimant states there has been procedural unfairness / bias in decision making, for example in relation to the length of [NAME] the parties were allowed for questions / submissions; (h) A 23–document zip file has been submitted, the claimant referring in his reconsideration application to documents 1 ,8 17, 18 and 19.

4. I deal with each of the points put forward by the claimant below. I [NAME] the claimant submitted a lengthy application for reconsideration with 32 subheadings, which identify different paragraphs in my reserved judgment dated 12/2/26.

(a) The claimant makes repeated complaints under headings paragraphs 4, 5, 8, 19 and 52 concerning decisions made by Employment Judge Anstis including paragraph 52, the removal of evidence. It is not appropriate for me to comment in respect of my colleagues and decisions made previously, and does not form a ground on which this decision should be varied or revoked.

(b) Paragraph 9 of my judgment records the difficulties the tribunal encountered at the start of the hearing, because the claimant joined the CVP link from a location which was unsuitable to conduct a tribunal hearing from. The claimant's location was stated simply to provide context as to why the claimant was joining via CVP from [NAME] Tribunal, this being a claim dealt with by Watford Employment Tribunal. I [NAME] there has been no application for any type of anonymity order in these proceedings by the claimant.

(c) The claimant has referred to document tampering, as he did during the final hearing, and I dealt with this as a preliminary point, as recorded in paragraphs 11 –16 of my judgment. I am satisfied that what is recorded in my judgment is an accurate account of the steps I took to ensure the documents before the tribunal were accurate. I went through the claimant's documents 1-7 compared to those in the bundle and concluded at paragraph 17 the issue had been resolved. This does not form a ground on which the original decision should be varied or revoked.

(d) At paragraphs 24, 25, 27, 29, 31 and 32, the claimant takes issue with what is recorded under the sub heading in my judgment ‘evidence heard and considered’. I have checked my notes of evidence and am satisfied that what I have recorded in my judgment is an accurate reflection of the evidence I heard in the case. This does not form a ground on which the original decision should be varied or revoked.

(e) The claimant refers to and disagrees with my findings of fact and conclusions drawn in paragraphs 51, 53, 54, 56, 57, 62, 67, 68, and 74. The claimant seeks to challenge findings of fact that were made or the conclusions that the Tribunal reached from those findings. The application is an attempt to re-litigate what was explored in detail at the hearing. A reconsideration is potentially a route for a party to raise new matters, but only where these have subsequently come to light after the hearing and where that party can explain why the matter was not raised before.

It is not the purpose of reconsideration, to allow a party to dispute a determination that a party disagrees with, and it is a fundamental requirement of litigation that there is certainty and finality. I have considered the documents submitted with this application at point (h) below separately.

(f) At paragraph 74, the claimant states I have misinterpreted the law on irregular hours workers. If conclusions made are disputed regarding whether a correct interpretation of the law was made, they are matters for an appeal which the claimant can make to the Employment Appeal Tribunal. These are not matters for a reconsideration request.

(g) The claimant has referred to procedural unfairness during the proceedings, including not being allowed sufficient [NAME] to make representations. The hearing was the claimant’s opportunity to give information, ask questions, and raise issues, which he did. He had the opportunity to ask questions of all witnesses and advance all relevant arguments. The Tribunal gave all the issues full consideration and prepared its decision and reasons in detail, in a 20-page reserved judgment. The claimant is, perhaps not surprisingly, unhappy with the outcome of the Tribunal as the decision was not in his favour.

My notes of evidence record the claimant gave 40 minutes of evidence in chief at the end of the day on the 3/2/26. He was cross examined on the 4/2/26 for 1 hour 15 minutes from 10.00 a.m. to 11.15 a.m. A break took place until 11.30am, and further cross examination took place for 1 hour and 10 minutes. In relation to closing submissions, the respondents' submissions were 22 minutes long, and I then sat until 4.45 p.m., hearing 43 minutes of submissions from the claimant between 4.02 p.m. - 4.45 p.m. I then produced a reserved judgment after the hearing.

(h) The claimant has sent in a 23-document zip file, referring in his reconsideration e mail to documents 1, 8, 17, 18 and 19. I was unable to access those documents initially, and the claimant was requested to resubmit the documents in a different format by the tribunal on the 30/3/26. The claimant resubmitted his documents again in a viewable format by e mail dated 1/4/26. I have considered those documents referred to.

Document 1 – E mail [NAME] dated 31/3/21

This e mail is from [APPELLANT], [NAME], rectifying a query on the claimant’s leave year 6/1/20 - 6/1/21, relating to 60 hours missing leave and 37.5 hours of buy back. [NAME] (assume [NAME]) is referred to in the email, as having said all buy-back hours should be in April's payslip, and there has been a delay in the carryover hours.

The claimant in his e mail states document 1 is evidence [APPELLANT] lied under oath, when she stated she had never heard of the annual leave buy back scheme. I refer to my judgment at paragraph 34, under the subheading ‘evidence heard and considered’. I recorded in the paragraph, in my summary of Miss [NAME] evidence ‘she confirmed a buy-back scheme did exist for annual leave not taken, but she had not seen an example of this happening whilst in her role’. The claimant’s reference in his e mail is inaccurate; Miss [APPELLANT] did not state in evidence she had never heard of the annual leave buy back scheme, she stated it existed and she had not seen an example of it in her role. I recorded in paragraph 68 in my

conclusions that I accepted Miss [NAME] evidence that there was management discretion to carry over more than 37.5 hours of leave.

I [NAME] the case of Ladd v Marshall (1954) 3 All ER 745, and the factors to consider in dealing with potential new evidence in a reconsideration;

(a) that the evidence could not have been obtained with reasonable diligence for use at the original hearing; (b) that it is relevant and would probably have had an important influence on the hearing and (c) that it is apparently credible.

The e mail dates from 31/3/21. It did not form [NAME] of the documents submitted at the hearing, which are summarised in paragraphs 10 and 11 of my judgment. The claimant has not provided an explanation as to why this document was not included in the final hearing bundle. Whilst I appreciate it provides evidence potentially that ‘[NAME] (assuming [NAME]) was aware of the buyback scheme, and in relation to this claimant, it would have been a point the claimant could have cross examined on, if he had adduced the e mail in evidence at the final hearing. It may be that if the e mail had been in the final hearing bundle, and [NAME] asked about it, she may have accepted the e mail related to her and she had dealt with a buy back issue in relation to the claimant previously.

I consider that the e mail was available and could be viewed as credible, it could have been included in the bundle by the claimant. It was relevant potentially to [APPELLANT] credibility. However, it would not have had an important influence on the hearing, this claim related to whether the claimant was entitled to carry forward 67 hours of leave into the leave year commencing 6/1/24, it related to leave accrued for the period 6/1/23 - 6/1/24. I conclude this evidence would not have made any difference to my decision and does not form a ground on which the claim should be reconsidered.

Document 8 – Formal Grievance Appeal Management Response – 9/9/22

This document is a 12-page Management response from [NAME], [NAME], dealing with a grievance made by the claimant on the 4/3/22. It refers to the claimant being relocated from [NAME] to [NAME], because the claimant was being investigated for breaches of the [NAME]' disciplinary policies and procedures. The claimant pursued a grievance for financial losses because of the relocation decision, in terms of availability of overtime, unsociable enhancement payments, incentive payments, and flowers payments. I [NAME] the grievance was upheld and the conclusions that relocation had led to financial detriment, and the conclusion the claimant was entitled to compensation. I also noted at paragraph 3.27, that [APPELLANT] had directed the claimant's hours of work to remain unchanged on relocation.

The claimant in his reconsideration application states document 8 shows the respondent had redacted letters and was rewriting their own evidence.

This document dates from 9/9/22 and did not form [NAME] of the documents submitted before me at the final hearing. In paragraph 26, ‘evidence heard and considered – claimant's evidence’, I recorded the claimant evidence, that he stated he had raised the issue of anti-social payments at the start and the end of the shift with his manager and lodged a formal grievance. He stated that the evidence was not

in the bundle and was not needed. I refer to my findings at paragraph 51 and 52 in my judgment, I noted I had not been provided with any copies of grievances lodged, or written complaints made by the claimant to the respondent concerning the payment of anti–social payments for Mondays to Fridays between May 2021 and December 2023.

Document 5 submitted by the claimant is his grievance dated 4/3/22. It refers to not being allocated shifts in February 2022 and offering to work shifts in November 2021 and his name being removed from the [NAME]. It refers generically to the loss of opportunity due to the relocation in respect of loss of overtime opportunities, unsociable enhancements to working hours, incentive payments, and flowers payments. There is a reference to a change to working hours in September 2021 and resuming some of the original working hours in February 2022. The grievance does not appear to detail a complaint about nonpayment of anti-social hours payments on specific dates between Mondays – Fridays, May 2021 – December 2023, which is the subject of this claim, more a generic complaint about lack of opportunity to work overtime / receive anti-social hours payment because of a change in the claimants work location.

Considering the [NAME] and [APPELLANT] test, this document was available to the claimant and could have been included in the bundle of documents submitted to the tribunal. The claimant determined it was not needed, and stated this in his evidence, and now seeks to rely on it. Whilst I appreciate the claimant is not represented in these proceedings, it is for him to determine how to present his case, and what evidence to rely on. I would accept that the evidence is potentially credible, in that there is evidence of a grievance lodged and the outcome.

The grievance is dated 4/3/22, so it can only relate to the potential loss of anti- social payments for the period May 2021 – March 2022, which forms [NAME] of this claim. What appears to be referenced in paragraph 4 of the management response to grievance, is an acceptance to pay the claimant a sum reflecting the overtime and anti-social hours payments he would have been able to work and claim, had he remained at Luton where overtime was more readily available. This is a different issue to the issue identified for determination by the tribunal in these proceedings at paragraph 19 of my judgment, namely whether the claimant was entitled to antisocial hours payments for shifts he worked commencing at 5.00am (for the period 5.00am - 6.00am of those shifts) between May 2021 – September 2021 and February 2022 - December 2023. I consider that the grievance and outcome would not have had an important influence on the hearing if included in the evidence and would not make a difference to my decision.

The claimant stated in his reconsideration application that this document shows the respondent had redacted letters and was rewriting their own evidence. There is reference in paragraph 3.11 in the grievance response to a letter dated 22/4/22 not being sent by [NAME], as it was superseded by 2 letters dated 16/6/22. All letters sent and unsent are attached as documents to the grievance response. If the claimant wanted to question the content/ circumstances in relation to those responses, the appropriate course would have been to include the grievance and response in evidence, which the claimant stated was not needed. I do not consider that this would have an important influence on the hearing and would not have made a difference to my decision and is not a ground on which my decision should be reconsidered.

Documents 17 and 18

Document 17 – Notes of informal meeting held 20/7/23 - claimant and [APPELLANT] 18 - E mails 17/7/23 - 1/8/23 between claimant and [APPELLANT] 17 contains 5 pages of notes of an informal meeting between the claimant and [APPELLANT], Head of Make Ready Services, with a [NAME] present. Discussed in the meeting was an informal complaint made by the claimant dated 16/7/23, in relation to his application for a comparable bank job, which the claimant states he was turned down for. The claimant made allegations someone at the respondent had interfered with his job application, so that it was not proceeded with. It is recorded that [NAME] explained that the job application had lapsed, no-one had interfered with the job application, and the claimant would not have been able to undertake a bank role on top of his permanent full-[NAME] job.

Document 18 contains a series of e mails between the claimant and [APPELLANT], the first from [APPELLANT] on the 17/7/23 explaining the claimants line manager would conduct a finding of fact into the claimant's job application for [NAME]. The claimant had made a complaint that his job application was cancelled, there was a further e mail to his manager [NAME] on the 1/8/23. The document contains an e mail from [APPELLANT] to the claimant dated 1/8/23, offering the minutes of the meeting on the 20/7/23 (which I assume are document 17), and includes the offer of 1:1 coaching on job applications with the head of talent management for the claimant.

These documents were not contained in the bundle of documents before the tribunal at the final hearing. They were clearly available to the claimant, and if he thought they were relevant, he could have sought to adduce them. I do not consider either document relevant to the issues before the tribunal for determination, namely whether the claimant was entitled to antisocial hours payments for shifts he worked commencing at 5.00am (for the period 5.00am - 6.00am of those shifts) between May 2021 – September 2021 and February 2022 - December 2023; and whether the claimant was entitled to carry forward 67 hours of leave outstanding at the end of his leave year on the 6/1/24. In his reconsideration e mail, the claimant refers to documents 17 and 18, and Employment Judge Anstis seeing a textbook example of victimisation before deciding the claimant could not claim for victimisation. This is not relevant to my considerations; there was no victimisation complaint to consider at the final hearing. I do not consider that the inclusion of documents 17 and 18 would have an important influence on the hearing, and would not have made a difference to my decision, and is not a ground on which my decision should be reconsidered.

Document 19 – E Mail dated 12/3/24 from [APPELLANT] to claimant

Document 19 is an e mail dated 12/3/24, from [APPELLANT] [NAME], Head of Employee relations, clearly headed ‘without prejudice’, relating to negotiations between the parties to settle the claim. The claimant issued proceedings on 5/5/24. Proceedings were clearly contemplated when this e mail was sent on the 12/3/24, the parties were in dispute with each other, and there has been no waiver of privilege by both parties. I consider this document would have been and is inadmissible in evidence, on the basis the without prejudice rule applies.

Exceptional circumstances as identified in [COMPANY] and [NAME] 2000 1 WLR 2436 CA, do not apply, for example misrepresentation or fraud. Document 19 is not a ground on which my decision should be reconsidered.

5. Overall, I find there is no reasonable prospect of the judgment being varied or revoked and reject the claimant’s application for reconsideration.

Approved by

Employment Judge Beck

Date: 14/4/26

JUDGMENT SENT TO THE PARTIES ON 17 April 2026

FOR THE TRIBUNAL OFFICE