The claimant in Shannon v Rampersad & Rampersad T/A Clifton House Residential Home had unusual working arrangements. As well as having a day job as a driver, at night (10pm until 7am) he was on-call in a care home owned by an acquaintance. He was allowed to sleep during those hours but had to respond to any request for assistance by the night care worker on duty. In practice such calls for assistance were very rare. The claimant received free accommodation in a studio flat in the care home and was paid the national minimum wage for those limited occasions when he was called on to work.

The claimant did not take any holidays after the Working Time Regulations came into force in 1998 and the question was whether, after his dismissal, he could carry forward his paid leave entitlement, totalling some £15,000.

It is well established that workers must be allowed to take holiday at a later date if they cannot take it because of sickness and that this happens automatically – a worker does not have to make a request to carry forward leave in this way.  The EAT in Sash Window Workshop Ltd v King at the end of 2014 (shortly after the Tribunal's decision in this case) indicated that the principle that holiday unused because of sickness can be carried forward to future years could potentially apply where the worker has not taken holiday for other reasons.

Here, the Tribunal decided that the claimant could have requested paid leave but chose not to, so he could not carry forward his past entitlement to pay in lieu of holiday.  The EAT agreed.  Although it approved of the analysis in the Sash Window case, here the facts did not support an argument that the claimant was unable or unwilling to take leave due to reasons beyond his control. Had the Tribunal accepted his evidence that he did not ask his employer for annual leave because he was frightened of upsetting him then the result might well have been different.

The other question was whether the claimant was entitled to be paid the national minimum wage for the full hours between 10pm and 7am, or only when he was awake and actually performing work. The Tribunal and EAT concluded that he was not working throughout each night shift; only on those rare occasions when he was called upon to do so by the night care worker on duty.