A plethora of cases in recent years, both in Europe and in the UK, have established that workers must be allowed to take holiday at a later date if they cannot take it because of sickness. NHS v Larner in 2012 held that this happens automatically – a worker does not have to make a request to carry forward leave in this way. The EAT decision in The Sash Window Workshop Ltd v King puts another conundrum into the mix – can this principle apply where the worker has not taken holiday for other reasons?
The claimant was a commission-only salesman who worked for the employer from 1999 until his dismissal in 2012. He had taken time away from work each year but was not paid for any holiday. He claimed that he would have taken more time off if it had not been for three factors:
- he had to give notice to ensure there were not too many salesman away at one time;
- if he did not work he did not get commission; and
- he was unaware of his entitlement to holiday pay.
A tribunal found that he was entitled to bring a complaint of unpaid holiday pay for the whole period of his employment, as an unlawful deductions from wages claim on a continuing basis. But the EAT allowed the appeal, concluding that the tribunal had not asked the essential question of whether the claimant had been prevented by circumstances beyond his control from taking paid leave; it had merely assumed that he was unable to take it because it would have been refused by the employer if he had asked for it.
The novel issue in the case is the EAT's apparent acceptance of the tribunal's finding that the carry forward of holiday could potentially apply in non-sickness cases. The effect of NHS v Larner was to require words to be read into the Working Time Regulations to disapply the "use it or lose it" presumption in sickness absence cases, with the result that unused leave cannot be carried forward "save where the worker was unable or unwilling to take it because he was on sick leave". The Sash Window Workshop Ltd v King suggests that this could be drawn more widely to read unable or unwilling "because of reasons beyond his control".
According to the EAT, what the tribunal needed to do was to assess what would have happened if the claimant has asked for leave – in other words, was he prevented from exercising his right, or did he merely choose not to do so?
The EAT also held that the claim was one for damages for refusal to allow the worker to exercise his right to annual leave, not an unlawful deductions for wages claim based on non-payment of holiday pay. As a result, the claimant was not able to take advantage of the more generous time limits which (according to the House of Lords in Stringer v HMRC) can apply to cases of holiday pay accrued as a result of sickness where there has been a "series of deductions". However, as the EAT recognised, the scope of the series of deductions provisions has in any event been limited by the recent holiday pay decision inBear Scotland Ltd v Fulton.