In the case of Smith v Pimlico Plumbers, the EAT has upheld an employment tribunal decision that a worker has no right to carry over payment for annual leave where the worker was previously permitted to take leave that was unpaid. Although an earlier case had established that a worker is entitled to carry over annual leave that is not taken because the employer refuses to pay for it, that decisions does not apply to leave that was taken.
In this case Mr Smith was unable to assert a right to be paid for holiday he had previously taken as at the time his employer did not accept that he was a worker within the meaning of the Working Time Regulations 1998.
In any event, the claim was out of time, having been presented more than three months after the date of the most recent failure to pay holiday pay. Although the worker was unaware of his worker status when he took the holiday, it was still reasonably practicable to have brought the claim in time. Despite the fact that the employer’s contractual documentation stated that he was self-employed, there was no real impediment to him making inquiries about his true status and seeking legal advice.
The EAT further held that the worker could only have brought his claim under regulation 16 of the WTR 1998 and not as a claim for unlawful deduction from wages, rejecting an argument that the tribunal should have followed the Northern Ireland Court of Appeal’s decision in Chief Constable of the Police Service of Northern Ireland v Agnew [2019] NICA 32 rather than Bear Scotland Ltd and others v Fulton and others UKEAT/0047/13 on the issue of the gap between deductions.
Although not determinative to the case before it, the President noted that the wording of regulation 13 of the WTR 1998 did not currently reflect the position set out by the ECJ in King. It therefore proposed additional wording to allow a worker to carry over untaken leave where they are prevented from taking holiday due to their employer’s refusal to pay them for it, and to enforce that right in the employment tribunal.
Case
Smith v Pimlico Plumbers UKEAT/0211/19, UKEAT/0003/20, UKEAT/0040/20 (17 March 2021)
