In Khan v Martin McColl, Mr Khan had two weeks’ accrued unused holiday from 2007, which he carried forward into the 2008 leave year. In addition, Mr Khan had four weeks’ standard holiday entitlement for the 2008 holiday year.
Mr Khan did not take any of this holiday because he went on long-term sick leave in May 2008 and did not work again prior to his resignation in August 2009.
On the termination of Mr Khan’s employment, Mr Khan was only paid in lieu of the holiday which accrued during 2009 prior to his resignation.
Mr Khan brought a claim in respect of the six weeks’ untaken holiday.
Mr Khan’s claim was dismissed for two reasons:
- by making a payment in lieu of unused holiday accrued during Mr Khan’s last year of employment (2009) the employer “broke” the series of deductions, causing the claims for earlier accrued but unused holiday to be out of time.
- The tribunal noted that Mr Khan did not request any holiday and so determined that he was not “denied” the right to take holiday. It acknowledged that he did not know that he could request holiday, that it was not unreasonable for him not to know and that he probably would have requested holiday if he had known (as he had little or no paid sick leave). However, it held that there are many cases where individuals do not make a claim because they do not know their rights and this was not a compelling reason for Mr Khan’s claim to succeed.