Shah v First West Yorkshire Limited ET/1809311/09

Mr Shah booked 4 weeks’ holiday leave from 22 February to 21 March 2009. This accounted for 12 days of his annual holiday entitlement as he worked part time. In January 2009 he broke his ankle and was absent from work between 15 January and 18 April. His sickness absence therefore overlapped with his booked holiday period. However, during his absence he received contractual sick pay and also holiday pay for the 12 days he had booked. On 4 April he wrote asking to reclaim his 12 days’ holiday but his employers refused as it related to a previous holiday year and had therefore been lost.

Mr Shah submitted a claim for loss of holiday under the Working Time Regulations 1998 and the Tribunal upheld Mr Shah’s claim. This is the first case in which a Tribunal has given effect to the Pereda decision, the decision in the European Court of Justice which held that a worker who was incapacitated during a period of previously scheduled holiday, should as far as the EU Directive is concerned, have the right to reschedule the holiday to a later date. See Bulletin 43.

Key point: It is likely Tribunals will apply the Pereda decision in further cases. Employers should address this issue in their contractual sick leave entitlement terms.