Mr Smith worked for Pimlico Plumbers Ltd for over five years. He subsequently brought tribunal claims, including for unpaid holiday pay that had accrued over those years. He claimed that although he had been allowed to take, and had taken, holiday, he had not been paid for these.
In a Court of Justice of the European Union (CJEU) case (King v Sash Window) the Court held that workers who were denied the opportunity to take holiday can accumulate leave and carry it over to subsequent years and are entitled to payment in lieu on termination.
Mr Smith’s holiday pay claim was dismissed by the EAT because it was presented out of time. The EAT also ruled that the CJEU’s decision was not concerned with holiday that was taken but unpaid, and there was nothing to suggest that the carry-over rights in respect of holiday that is not taken applied to holiday that the worker had taken even if that had been unpaid.
This case provides welcome clarity that employers do not have an ongoing potential liability in relation to unpaid holiday which has been taken by workers over previous years.
Where claimants have brought their claim out of time and have sought to show it was not reasonably practicable to bring their claim in time because of ignorance of the true legal position, they have rarely succeeded. The EAT’s comments on the ‘reasonably practicable’ test in cases of deliberate concealment as to the true legal position by an employer appear to suggest that the claimant’s particular circumstances, including even their level of intelligence, will be relevant where an employer has sought deliberately to conceal the claimant’s legal rights from them. This may not be the end of the matter though as we understand that permission has now been granted for an appeal to the Court of Appeal.