The Claimant is a plumbing and heating engineer, who worked for the Respondent from August 2005 to May 2011. Throughout that period, the Respondent maintained that the Claimant was a self-employed independent contractor with no entitlement to paid annual leave. The Claimant did take periods of unpaid leave. On 3 May 2011, the Respondent suspended the Claimant. The Claimant regarded this and other treatment as a fundamental breach entitling him to terminate the contract. On 1 August 2011, the Claimant initiated a claim for, amongst other things, holiday pay. At a hearing in March 2019 (the Claimant’s status as a worker having been confirmed by the Supreme Court in the interim), the Tribunal dismissed the holiday pay claim on a preliminary jurisdictional point that it was brought out of time. It did not consider that the CJEU’s decision in King v Sash Window Workshop (C-214/16) [2018] ICR 693 (‘King’) entitled the Claimant to bring a claim in respect of unpaid annual leave that was taken. The Claimant appealed contending that the Tribunal had erred in its interpretation of King and in determining that his claim was out of time.
Held, dismissing the appeal, that the Tribunal had not erred in its interpretation of King. The CJEU’s decision in King was not concerned with leave that was taken but unpaid, and there was nothing in it to suggest that the carry-over rights in respect of annual leave that is not taken (because of the employer’s failure to remunerate such leave) applied to leave that was in fact taken. The Tribunal had also not erred in determining that it had been reasonably practicable for the Claimant to have brought his claim in respect of holiday pay within the relevant time limits.
Citations:
[2021] UKEAT 0211 – 19 – 1703, [2021] ICR 1194
Links:
Statutes:
Working Time Directive 2003/88/EC, Charter of Fundamental Rights of the European Union
Jurisdiction:
England and Wales
Cited by:
Appeal from – Smith v Pimlico Plumbers Ltd CA 1-Feb-2022
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Lists of cited by and citing cases may be incomplete.
Employment
Updated: 03 February 2022; Ref: scu.661706
