An employment tribunal in Khan v Martin McColl has considered the impact of HMRC v Stringer (see Employment Briefing July 09) where an employee on long term sick leave did not request holiday during his sick leave. On the termination of his employment on 14 August 2009 his employer paid him for accrued holiday during the last year only of his employment. Mr Khan brought a claim for unlawful deduction from wages and a claim under the Working Time Regulations in respect of 4 weeks’ holiday that had accrued during his 15 month period of sick leave together with two weeks’ holiday carried forward from the previous year, 2007. The House of Lords in Stringer had made it clear that claims of holiday pay can be a series of deductions.

The company argued that there was no right to carry forward from 2008 to 2009, that they had paid for 2009 and the right to holiday pay for 2008 expired on 31 December 2008. The limitation period for the claim for 2008 expired on 31 March 2008. The tribunal agreed, noting however the unfairness to Mr Khan that he would not realise that there had been a deduction until he made a claim for the whole of his holiday pay in August 2009. The tribunal noted that there was no recorded authority on this point and referred to the ECJ’s reasoning in Stringer when making its decision. The tribunal commented that Mr Khan did not apply to take holiday during 2007 or 2008 or at any time during sick leave. Mr Khan did have the (at least notional) opportunity to take leave. Until the House of Lords decision in Stringer Mr Khan would not have known that he had the right to claim holiday pay during his sick leave. However, the tribunal ruled that this was not germane.

The clear lesson for employees on long term sick leave is that they need to ensure they request holiday leave or pay in lieu within 3 months of expiry of the holiday year or risk losing the right to claim this pay. This is a tribunal decision and therefore does not bind other tribunals or other courts. The tribunal noted the previous case of Shah v First Yorkshire Ltd but did not think the tribunal decision in that case was inconsistent with its decision.