Mr R Drakeley v Wrates Scholastic Photographs Ltd (England and Wales : Unlawful Deduction from Wages)

Factual and Procedural Background

The Plaintiff was employed by the Defendant, a company specialising in school photography, from August 2018 until his resignation on 31 March 2021 without notice. The Defendant’s business operates primarily during school term times, with limited or no work during school holidays. Employment contracts restrict holiday-taking to school holiday periods, effectively dividing work and non-work time accordingly.

During the COVID-19 pandemic, the Plaintiff was placed on furlough from 22 March 2020 to at least 31 July 2020, receiving 80% of his normal pay under the government’s job retention scheme, with no additional top-up from the Defendant. The Plaintiff claimed entitlement to holiday pay for 2020, alleging he was offered a choice to take holiday pay at 80% with the balance deferred or to roll over holiday entitlement under the Coronavirus amendment to the Working Time Regulations 1998. He contended he chose to roll over his holiday.

The Defendant did not operate a holiday booking system, as staff were understood to be not working during school holidays regardless of formal holiday status. The Plaintiff’s claim was heard at the Midlands East Employment Tribunal via video platform before Employment Judge Brewer on 21 January 2022, following a hearing with oral and written evidence, including witness testimony from two senior managers of the Defendant.

Legal Issues Presented

1. Whether the Defendant made unauthorized deductions from the Plaintiff’s wages in 2020, and if so, the amount deducted.
2. Whether the Defendant failed to pay the Plaintiff for accrued but untaken holiday under the Working Time Regulations 1998, including amendments related to coronavirus.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff claimed that during December 2020 he was given an option to take holiday pay at 80% with the balance to be paid later or to roll over holiday entitlement under the coronavirus regulations, and that he chose to roll over his holiday.
• The Plaintiff relied on a text message indicating an intention to take holidays the following year and WhatsApp messages from early January 2021, which he argued related to 2020 holiday entitlement.

Respondent's Arguments

• The Defendant maintained that the Plaintiff had taken all his 2020 holiday during the fixed school holiday periods, including August, prior to furlough.
• There was no contractual or statutory change to the holiday arrangements in 2020, and no evidence that it was not reasonably practicable for the Plaintiff to take his holiday in 2020.
• The Defendant argued that the messages relied upon by the Plaintiff related to 2021 holiday and that no option to roll over holiday was offered for 2020.
• The Defendant acknowledged owing the Plaintiff payment for unpaid holiday from 2021.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
New Century Cleaning Co Ltd v Church [2000] IRLR 27, CA	Clarification that "or otherwise" in the definition of wages does not extend entitlement beyond sums with some legal basis.	The Court applied this to confirm that holiday pay must be sums to which the worker has a legal entitlement.
Greg May (Carpet Fitters and Contractors) Ltd v Dring [1990] ICR 188, EAT	Tribunals should determine wages properly payable based on ordinary principles of common law and contract.	The Tribunal used this principle to assess the contractual entitlement to wages and holiday pay.

Court's Reasoning and Analysis

The Tribunal began by analysing the contractual framework and the Defendant’s holiday system, which tied holiday entitlement to school holiday periods without a formal booking system. The Plaintiff was found to have taken the majority of his 2020 holiday entitlement during August, as required by contract, prior to furlough.

The Tribunal examined the Plaintiff’s reliance on messages suggesting a deferral or rollover of holiday but concluded these related to 2021, not 2020, as the contractual holiday periods for 2020 had effectively been exhausted before furlough.

There was no evidence that it was not reasonably practicable for the Plaintiff to take his 2020 holiday, a necessary condition for carrying forward leave under the 2020 Coronavirus amendments to the Working Time Regulations. The Defendant’s formal communications did not indicate any change to holiday arrangements or offer of rollover options for 2020.

Regarding unauthorized deductions, the Tribunal found that although the Plaintiff was paid 80% of normal pay during furlough, any shortfall was remedied by subsequent payments, negating an unlawful deduction claim.

The Tribunal accepted the Defendant’s concession that the Plaintiff was owed holiday pay for 2021, calculating the sum as £612.96 before statutory deductions.

Holding and Implications

The Tribunal DISMISSED the Plaintiff’s claims for unauthorized deductions and holiday pay relating to 2020, holding that the Plaintiff had taken his full holiday entitlement for that year and was not entitled to carry over leave or additional payment.

The Tribunal UPHELD the Plaintiff’s claim for unpaid holiday pay from 2021, ordering the Defendant to pay £612.96, subject to tax and National Insurance deductions.

This decision resolves the dispute between the parties without establishing new legal precedent. It confirms that holiday entitlement tied to fixed contractual periods must be taken within those periods unless exceptional circumstances, such as those recognised under the 2020 Coronavirus amendments, apply and are evidenced.