EAT Contract of Employment : Sick Pay and Holiday Pay – This is a case in which it is said there was an insufficiency of evidence. The Claimant was a construction worker, who claimed holiday pay. He said that he would have taken holidays, but could not tell the Employment Tribunal exactly which holidays he had taken. He said that the sites he had worked on were sometimes closed due to bad weather or perhaps other reasons. The Employment Judge made an order giving payment for Bank Holidays but declined to guess as to the rest of the holidays.
The second matter in the case relates to consequential loss, and it is said that submissions were made, to put it at its broadest, about consequential loss but that the Employment Judge did not deal with the matter, although the parties were prepared and, on one view at least, the paperwork raised the matter. While I cannot resolve any dispute of fact between the Claimant’s representatives on the one hand and the Employment Judge on the other, I do hold that I should err on the side of caution and if there is any doubt that the Claimant was afforded a fair trial in the sense of having what he wanted to have put before the Employment Judge put before him, then I should err on the side of caution and allow the Claimant to have that part of his claim heard.
I have heard the parties on it today and I have done that because it seems to me to be in the interest of justice to do so.
 UKEAT 0325 – 13 – 0512
England and Wales
Updated: 01 December 2021; Ref: scu.522373