Employment Tribunal or small claims?

returnofghandi

Short version: After advice, for my daughter, about whether to go to Employment Tribunal (ET) or Small Claims Court? This is for unpaid unused accrued holiday pay (UAHP) of £230.03 plus previous employer also now wants 2/3 of previously paid UAHP back as he states daughter was ‘Bank Staff’ for 3.66 months so no contract, not entitled to accrued holiday and hence no UAHP for that period.

Went through ACAS early conciliation, started 15 Feb 26 and with zero response, from the previous employer to the ACAS conciliator, daughter was issued an Early Conciliation Certificate yesterday. Now she has to decide whether to go to ET or small claims as she was underpaid and now her previous employer is asking for money back.

Long version: Daughter worked as night staff in a Care Home from Nov 2024 – Nov 2025. Last day worked 06 Nov 25, gave notice 10 Nov 25. Last pay statement 28 Nov 25. Leave year is 1st April to following 31st March. Pay is based on hours worked from 20th to following 19th then paid at end of month. Worked 12 hr shifts, but only paid for 11 hrs as 1 hr ‘break’ (still expected to work if required) was unpaid at £13.22/hr.

Started out on 24hr contract (have proof), then Bank Staff (had no proof until care home owner provided it) from 21 Mar 25, then 36 hr contract (have proof) from 20 Jul 25 until leaving.

Only took 3 days holiday during 01 Apr-10 Nov 25; 31 Oct-02 Nov 25 inclusive. This was paid as 33 hrs (3 x 11hrs) in Nov 25 pay statement.

Emailed 11 Dec 25 asking for UAHP and P45; no response.

Emailed again 02 Feb 26 asking for UAHP and P45, citing ‘failure to pay the accrued unused holiday pay constitutes a breach of the Employment Rights Act 1996 and the Working Time Regulations 1998 and is an unlawful deduction of wages’. Told the home owner that if nothing heard within 7 calendar days then would go to ACAS for UAHP and contact HMRC about P45. Got a response to this email 05 Feb 26 saying he (owner) would look into it.

Heard nothing, so contacted ACAS and started a case on 15 Feb 26.

Got an email on 06 Mar 26, from owner with PDF of P45 and a pay statement showing that daughter had been paid ‘HCA Holiday’ of 56.6 hrs at £13.22, gross £748.25, net after income tax of £598.65.

Emailed owner asking how UAHP had been worked out and he came back with this:

8/12 (mths) x (5.6 (stat) x 24 (contract hrs) = 89.6, less paid 33.00, owed 56.60

At this point had no proof of working as Bank staff, as employer never gave daughter a copy or emailed it to her; like they had with 24/36 hr contracts.

Emailed care home owner stating 36 hr contract from 20 Jul 25, providing proof, therefore UAHP needing recalculating.

Got email response from care home owner, with email proof of keeping daughter on as bank staff from 01 Apr 25 until further notice. Daughter did work there and got paid in April, May, June and July. Care home owner stated daughter had no contract from 01 Apr-19 Jul 25, so no holiday entitlement and hence no UAHP for that period; he sent this:

recalculated hrs for 20 Jul-06 Nov 25 as 3.53/12 months (5.6 x 36) = 59.304 hrs,

already been paid 56.6 hrs UAHP + 33 hrs taken and paid Nov 25 = 89.6 hrs

so overpaid 30.296 hrs and she needs to pay back £409.76 (£13.22 x 30.296) (of the ‘taxed’ £598.65 paid to daughter)

I worked out the holiday hours accrued as this and emailed owner with these calculations:

01 Apr-19 Jul 25 as zero hrs contract; Apr 33 hrs, May 121 hrs, Jun 143 hrs, 01 Jul-19 Jul 99 hrs – so at 12.07% UAHP = 396 hrs x 0 .1207 = 47.7972 or 48 hrs rounded up (which I understand is what should happen).

Then 20 Jul-06 Nov (last day worked) is 3.53/12 (months) x (5.6 (stat) x 36 (contract hrs)) = 59.304 or 59 rounded down (which I understand is what should happen).

Giving a total of 48 hrs + 59 hrs = 107 hrs. Daughter has been paid for 89.6 hrs so leaves care home owner owing 17.4 hrs UAHP £13.22 x 17.4 hrs = £230.028 or £230.03 (rounded up) that she is still owed.

That was the last correspondence with the owner; he has gone silent with my daughter and with ACAS.

Savvy_Sue

I think the general advice is that Small Claims Court is likely to be faster and more straightforward in a simple case of unpaid wages. Whether this is straightforward isn't clear to me. Also I'm not sure if you can switch to Small Claims if you've started the ET process.

lincroft1710

Winning at ET puts more pressure on the employer to pay the claim than winning at Small Claims. Apparently the ET will chase the employer if they haven't paid up.

returnofghandi

Appreciate the comments.

She's decided to go ET as ex employer wants about £400 back from some of the holiday pay that he has paid as he thinks zero hours workers aren't entitled to statutory holiday. Apparently there are other ex-employees who never received holiday pay but it would appear they never pursued it. It's about time the ex-employer has someone (ET panel/Judge), with a bit more clout, remind him of employment law.

Marcon

She's decided to go ET as ex employer wants about £400 back from some of the holiday pay that he has paid as he thinks zero hours workers aren't entitled to statutory holiday. Apparently there are other ex-employees who never received holiday pay but it would appear they never pursued it. It's about time the ex-employer has someone (ET panel/Judge), with a bit more clout, remind him of employment law.

Good call. There's a far better chance of getting a properly informed outcome from an ET where (as here) specialist employment knowledge is required.