fraser_southwestEAT2011
EAT JURISDICTIONAL POINTS – 2002 Act and Pre-Action Requirements
WORKING TIME REGULATIONS – Holiday Pay
Employee dismissed in October 2008 claims brings claims of, inter alia, (a) discrimination on grounds of age and disability and (b) unpaid statutory holiday pay in respect of the two previous leave years during which she had been away on long-term sickness absence
Claims dismissed by Tribunal, as regards (a), on the basis that the Claimant had not complied with section 32 (2) of the Employment Act 2002; and, as regards (b), on the basis that she had not given notice of any intention to take annual leave during the years in question as required by regulation 15 of the Working Time Regulations
Held, dismissing the appeal:
(a) That the Respondents were entitled to take a point on non-compliance with section 32 (2) at the commencement of the substantive hearing before the Tribunal notwithstanding that they had not pleaded it in their ET3 or at any time prior to the hearing – Glasgow City Council v Stefan Cross Claimants (UKEATS/0007/09) followed
(b) That an employee is only entitled to holiday pay under regulation 16 (1) if he or she has actually taken the leave in respect of which they seek to be paid, and has done so in accordance with the WTR by giving notice in accordance with regulation 15 – Kigass Aero Components Ltd v Brown [2002] ICR 697 followed; List Design Group Ltd v Catley [2002] ICR 686 and Canada Life Ltd v Gray [2004] ICR 673 not followed; Stringer v HM Revenue and Customs Commissioners [2009] ICR 932 and Pereda v Madrid Movilidad [2009] IRLR 959 considered; and that the employee could not get over her failure to give notice by relying on Scally v Southern Health and Social Services Board [1991] ICR 771.
Underhill P J
[2011] UKEAT 0456 – 10 – 0311
Bailii
Employment Rights Act 2002
England and Wales
Employment
Updated: 11 November 2021; Ref: scu.448112