Does holiday pay carry over apply to cases where the employee could have taken the holiday but chose not to? One of our employees has not taken holidays for a number of years. He has now left our employment but is trying to claim backdated holiday pay. As far as we are aware there was no reason he couldn’t have requested holidays, for example due to sickness. He just chose not to take them.
Employees who are unable to take their holiday entitlement due to sickness are automatically allowed to carry their holiday entitlement over to another year or take it at a later date. However, it was suggested in Sash Window Workshop Ltd v King that the principle could extend beyond sickness and could potentially apply where the worker has not taken holiday for other reasons.
In the recent case of Shannon v Rampersad & Rampersad T/A Clifton House Residential Home, the claimant brought a claim for pay in lieu of untaken holiday entitlement. He claimed that he was entitled to carry over holidays for 15 years. The claimant hadn’t taken any holidays since the Working Time Regulations came into force in 1998!
The Tribunal found that the claimant could have requested holiday leave but chose not to and as a result of that he could not carry forward his past entitlement to holiday. The claimant appealed, but the Employment Appeal Tribunal (EAT) agreed with the Tribunal. Although the EAT agreed that the principle could extend beyond sickness, the facts did not support an argument that the claimant was unable or unwilling to take leave due to reasons beyond his control.
On that basis, unless the employee was unable to take holidays due to sickness or can demonstrate that there was a reason beyond his control which prevented him from taking holidays, he would not be entitled to pay in lieu of untaken holiday entitlement. The facts do need to support the employee’s claim, and if it is simply the case that he chose not to take his holiday days even though he could have, then it is a case of use it or lose it.
If you have any questions on any of the issues raised in the above article, please contact Alan Sutherland