Khan v Martin McColl ET/1702926/09

Mr Khan’s employment was TUPE transferred to McColl’s in 2007. McColl’s guaranteed that none of the transferring employees would lose any holiday entitlement that was not used before the transfer. Mr Khan had two weeks’ accrued but unused holiday at that point which the tribunal held was carried into the 2008 leave year. He was also entitled to 4 weeks’ in 2008, taking 6 weeks’ in all. He did not take or apply for any holiday in 2008 or 2009 but went on long-term sick leave in May 2008 and did not work again prior to his resignation in 2009.

On termination of his employment McColl’s paid him in lieu of holiday which had accrued during 2009 prior to his resignation. He brought claims for unlawful deduction from wages and under the Working Time Regulations in respect of the four weeks’ holiday from 2008 together with the 2 weeks’ holiday that he had carried forward from 2007. The tribunal held that as Mr Khan did not request any holiday he was not denied the right to take holiday. Mr Khan had received his holiday pay for 2009 and he was not entitled to anything further.

Key point: This is a first instance tribunal decision only but employers should consider making a payment on termination in lieu of the holiday accrued during the last employment year only which may result in no further holiday pay being due to the employee, if challenged.