The EAT further restricts claims relating to holidays
In November, the Employment Appeal Tribunal limited the ability of employees to claim back payments of holiday pay where commission had not been accounted for in the calculations. This month the EAT has restricted claims from workers for payments in lieu of holiday they were unable to take.
In 2012 the Court of Appeal established that an employee is entitled to carry over holiday where they have been unable or unwilling to take it because they were off sick. In the case ofThe Sash Window Workshop Limited v. King [UKEAT/0057/14]a self-employed salesman argued that he had been “unable or unwilling” to take holiday because he knew he would not be paid for it. On retirement, he argued that his holiday should have been carried over and that he should be paid a lump sum in compensation.
The EAT said that Mr King’s unwillingness to take holiday was not a similar situation to someone on sick leave. Although the EAT accepted that non-payment of holiday is likely to deter someone from taking time off, Mr King could afford to do so.
Interestingly, the EAT went beyond the Court of Appeal’s 2012 ruling that the delay in taking holiday had to be for sickness. The EAT said it could apply whenever a worker was “unable or unwilling because of reasons beyond his control to take annual leave”. This leaves open some interesting questions such as family emergencies or even holiday clashes with a spouse. The advice has to be that HR departments and line managers should ensure that all staff are taking holiday throughout the holiday year and do not allow problems to build up.