Mr J Dickson v The Warden and Scholars of St Mary College of Winchester: 1406042/2023

EMPLOYMENT TRIBUNALS

Case No 1406042/2023

Between

Mr J DicksonClaimant

The Warden and Scholars of St Mary College of WinchesterRespondent

Before

Employment Judge Leverton

Ms Grace Nicholls (instructed by counsel) for claimant

Mr Adam Ohringer (instructed by counsel) for respondent

Date 30 March 2026

JUDGMENT

The Claimant’s complaint in respect of holiday pay succeeds, but only to the following extent:

[1]The Claimant is entitled to statutory holiday pay in respect of group tuition/ensemble work carried out during Period One (1 September 2001 – 31 August 2021). This claim is based on reg 14 of the Working Time Regulations 1998 as interpreted in Sash Window and Pimlico Plumbers, and he is therefore limited to recovery of holiday pay in respect of four weeks’ annual leave.

[2]The claim for statutory holiday pay in respect of individual music tuition carried out during Period One is out of time.

[3]The Claimant is entitled to statutory holiday pay in respect of both individual music tuition and group tuition/ensemble work carried out during Period Two (1 September 2021 – 2 July 2023), based on his full annual holiday entitlement of 5.6 weeks. During this period, the Claimant took annual leave but was not paid for it in breach of reg 16 of the Working Time Regulations 1998, and the Respondent made a series of unauthorised deductions from his wages.

[4]The Claimant is not entitled to any holiday pay in respect of unpaid ancillary duties such as report writing.

REASONS

Claim

[1]By a claim form presented on 30 November 2023, the Claimant brought claims for unfair dismissal, redundancy pay, holiday pay and other payments. Various claims were dismissed on withdrawal in a judgment dated 4 April 2025, leaving only the claim for statutory holiday pay under the Working Time Regulations 1998 SI 1998/1833 (‘WTR’) and/or the unauthorised deductions provisions in Part 2 of the Employment Rights Act 1996 (‘ERA’). The Claimant has confirmed that he does not pursue any claim in respect of pension contributions.

[2]The Claimant seeks holiday payments in respect of:(i) individual tuition as a visiting music teacher, and

(ii) group tuition/ensemble work. He also says that ancillary duties, such as report writing, were unpaid and were therefore not taken into account in any holiday pay calculation.

[3]The holiday pay claim covers two distinct periods:a. 1 September 2001 to either 3 July 2021 or 31 August 2021 (‘Period One’), when the Claimant worked for the Respondent as a visiting music teacher on a purportedly self-employed basis;

b. 1 September 2021 to 2 July 2023 (‘Period Two’), when the Claimant worked for the Respondent under a contract of employment.

[4]The claim in respect of Period One is brought under regs 13, 13A and 30(1)(a) WTR. The Claimant’s case is that he was not allowed to exercise his statutory right to paid annual leave during that period because he was incorrectly classified as self-employed and the Respondent did not accept that he was a worker for the purposes of the WTR.

[5]A further claim in respect of Periods One and Two is brought under regs 14, 16 and 30(1)(b) WTR and/or section 13 ERA. The Claimant’s case is that he was not paid holiday pay for leave taken during that period, and/or was denied a payment in lieu of holidays on termination. Evidence and procedure

[6]The Claimant was represented by Ms Nicholls and the Respondent was represented by Mr Ohringer. I was provided with an indexed hearing bundle of 178 pages. The Claimant provided a supplementary bundle of 26 pages, with the page numbering following on from the main bundle. There was no explanation for its lateness but I admitted it in evidence on the basis that it appeared to be relevant and any prejudice to the Respondent was minimal because it touched on issues that were already in play.

[7]On the second day of the hearing, the Claimant submitted a revised schedule of loss. The Respondent had not had an opportunity to review the revised schedule, which included payments going back a number of years. It was agreed that I would issue a reserved decision on liability only, with a separate hearing on remedies if required.

[8]The Claimant and Mrs Broughton, HR Manager for the Respondent, provided witness statements and gave oral evidence. Mrs Broughton had technical issues and initially joined the video hearing by telephone, but by the time she gave evidence she had managed to join by CVP. I heard closing arguments from both parties’ representatives. I am grateful to all those who attended for their assistance.

[9]Shortly after the hearing I discovered the case of Cobalt Data Centre 2 LLP and another v Revenue and Customs Commissioners

[2024] 1 WLR 5213

, SC, to which I had not been referred by counsel. I directed the parties to provide concise written submissions addressing the implications of that case for the introduction of the new agreement dated 1 September 2021, in relation to both(i) individual music tuition, and

(ii) group tuition/ensemble work. I also requested written submissions on the effect of the ‘entire agreement’ provision in clause 62 of the agreement. My directions were not sent out to the parties until 10 March 2026 and there was a further delay in the written submissions being forwarded to me by the tribunal office. This has resulted in a delay in issuing the judgment, for which I apologise.

Findings of fact

[10]I find the following facts on the balance of probabilities, based on the evidence I heard and the documents before me. Additional findings of fact relevant to the issues I need to decide are included under the heading ‘Discussion and conclusions’ below. Where I consider it would be helpful, I have included page references to documents in the hearing bundle in square brackets.

[11]It is worth noting at the outset that the two members of the Respondent’s HR team involved in the relevant events (Richard Castleton, HR Director, and Georgina Dainton, HR Manager) left their employment with the Respondent over two years ago and neither of them was available to give evidence at the hearing. Mrs Broughton was not employed by the college at the relevant time, and her evidence was therefore based on documentary records and conversations with others rather than personal knowledge. Inevitably, there were some matters that she was unable to comment on.

[12]The Claimant worked at the Respondent school, known as Winchester College, as a visiting music teacher (‘VMT’) from 1 September 2001. The Respondent now concedes that from September 2001 until July or August 2021 (‘Period One’), he did not receive any paid annual leave because he was incorrectly classified as self-employed.

[13]During Period One, the Claimant was engaged under a ‘self-employed’ Visiting Music Teacher Agreement (‘VMTA’). His individual one-to-one tuition was governed by the VMTA throughout Period One. The version of the VMTA in the bundle was dated 27 April 2010 and had been signed by the Claimant on 3 May 2010 [55]. The Claimant thought there might have been an earlier version but he was unable to find it.

[14]The key provisions of the 2010 VMTA were as follows:a. The Claimant was self-employed, was responsible for his own tax and National Insurance contributions, and had no express or implied contract of employment with the Respondent – clause 3.

b. Clause 3.4 provided: ‘Any group tuition you undertake will be as an employee of the college and to this end a separate contract of employment must be drawn up.’

c. The Claimant was not entitled to a pension, paid annual leave, or other statutory payments such as statutory sick pay.

d. The Claimant had the right to provide a substitute at his absolute discretion. (I accept his evidence that in practice he never appointed a substitute.)

e. The Respondent would provide rooms for private teaching, subject to availability, and reserved the right to charge the Claimant room hire.

f. The Claimant agreed to provide and use his own equipment where possible.

g. Other clauses dealt with matters such as safeguarding, submission of pupil progress reports, invoicing for the Claimant’s services and payment of travel expenses.

h. The Respondent or the Claimant could terminate the VMTA at any time by giving at least one complete term’s written notice – clause 19.

[15]The Claimant was also provided with a Music Department Handbook which contained detailed instructions as to how the individual music tuition should be carried out. The Respondent issued invoices to parents on the Claimant’s behalf, calculated with reference to the applicable hourly rate, and cheques from parents were placed in the Claimant’s pigeonhole at the start of each term. In later years, VMTs wrote invoices themselves and were paid by parents directly to their bank accounts.

[16]It was expressly stated in clause 3.4 of the VMTA that any group tuition, including working with ensembles, would be governed by a separate contract, which would be one of employment. The Claimant worked with ensembles and bands sporadically from 2005, and consistently from summer 2008. He submitted invoices for this work to the Respondent from time to time based on the applicable hourly rate, which was higher than the rate for individual tuition; two examples dating from 2020 were included in the bundle [62–63] and there were also invoices from June 2021 [117/120].

[17]This group tuition/ensemble work was treated differently from the Claimant’s work as a VMT. Even before September 2021, the Respondent recognised that the Claimant was an employee in respect of it. He was paid for it through payroll with tax and National Insurance deducted. From 2014, he received payslips and was a member of the Teachers’ Pension Scheme in respect of this work. No written employment contract for group tuition/ensemble work was entered into during Period One, despite clause 3.4 of the VMTA stating that this would happen. I find that the terms on which the group tuition/ensemble work was carried out during Period One were separate from those set out in the VMTA and were agreed verbally between the parties and/or evidenced by the parties’ conduct. The agreed arrangement was that the Claimant would carry out the work as and when required and submit invoices based on an agreed hourly rate, which was higher than the rate paid for individual tuition. No doubt this was supplemented by other terms, either expressly agreed or implied.

[18]The Claimant carried out individual music tuition under the VMTA for many years. By around 2020, the college was having concerns about the IR35 implications of this notionally ‘self-employed’ arrangement and the developing case law on employee/worker status, which suggested that one looks at the reality of the situation rather than the written terms of the contract. A decision was taken to regularise the position of the VMTs and offer them employment contracts. This was done against a backdrop of concerns expressed by the VMTs as to their employment status, and ongoing negotiations involving the Incorporated Society of Musicians (‘ISM’). The Claimant, as a staff representative, was involved in those discussions.

[19]On 29 March 2021, the Respondent gave notice to all VMTs to terminate their VMTAs with a view to offering them employment contracts. An email sent to each of them stated: ‘I write to formally give a term’s notice, 19th April 2021 to 3rd July 2021, of the termination of your engagement as a self- employed Visiting Music Teacher at Winchester College. The decision to do this has been made due to the imminent IR35 regulations update’ [88/179].

[20]The email then set out the following timetable for the changes to take effect: 1. By 29 March 2021 all existing Visiting Music Teachers will be given written notice that their current contract of services is to cease. 2. By 19 April 2021 the Master in Music will contact all those for whom work may not be available in September. 3. By 3 May 2021 all existing Visiting Music Teachers must inform the Master in Music whether they wish to take up the opportunity to join the school as an employee. 4. By 10 May 2021 all those wishing to become a Visiting Music Tutor will be sent an employment contract. 5. By 18 June 2021 it is hoped to write [to] all Visiting Music Tutors with the proposed hours and salary for the new term starting September 2021. 6. 31 August 2021: all existing Visiting Music Teacher service agreements cease. 7. 1 September 2021: new Visiting Music Tutor contracts start.

[21]The sections highlighted in bold have given rise to a dispute between the parties as to whether the VMTAs ended on 3 July 2021 or 31 August 2021. I shall address this point under ‘Discussion and conclusions’ below.

[22]The rationale behind the new offer was explained in an email dated 5 May 2021 from Richard Castleton, HR Director, to the Claimant [92]. Mr Castleton stated that the Claimant was presently being paid £45.90 per hour as a VMT. The school did not wish to increase the cost of music lessons to parents when the new arrangements came into effect. Under the new employment contract, the Claimant would therefore receive a lower hourly rate of £40.33. The reduction was said by Mr Castleton to take into account employer National Insurance contributions, so that in effect this additional cost to the college would be funded by the Claimant out of his pay packet. The college would absorb a 9% contribution to the Aviva pension scheme, as well as life and sickness cover, although if the Claimant chose to join the Teachers’ Pension Scheme instead of the Respondent’s defined contribution scheme he would receive a lower hourly pay rate of £33.39. Mr Castleton added that the new hourly rate had ‘holiday pay included and calculated as 5.6 weeks over the year worked. This was no doubt the calculation that the VMTs used in calculating their holiday pay as a self-employed person.’

[23]The VMTs were advised and represented by the ISM at this time. The Claimant was one of the three main points of contact between the VMTs and the ISM. On 13 May 2021, Jeremy Dunn, Employment Representative in the ISM Legal Team, wrote to Mr Castleton raising various issues about the proposed employment contracts. He pointed out that the VMTs were arguably workers or employees in respect of their work under the VMTAs and ‘if that was found to be the case any worker would be able to seek 24 months’ back holiday pay…’ [97]. The Claimant accepted in cross-examination that he would have approved a draft version of the letter before it was sent, even though he now had no recollection of doing so. He said – and I accept – that his focus in 2021 was on obtaining a contract that reflected the VMTs’ working practices and recognised that they were not self-employed, rather than pursuing a tribunal claim for backdated holiday pay.

[24]The new employment contract was dated 10 June 2021 and the Claimant signed it on 24 June 2021 [102]. A handwritten note next to his signature indicated that he was signing ‘subject to various concerns raised via [Headmaster] by [VMT representative]’ [110]. This reflects the fact that there were ongoing discussions about the hourly rate under the new contracts and the lack of additional payment for ancillary duties, including report writing, timetabling and answering emails. These matters had been raised in the letter from Mr Dunn dated 13 May 2021. In response, Mr Castleton had expressed his willingness to work with the VMTs ‘to find positive future solutions’. He had also clarified that the hourly rate under the new contracts included ‘all necessary non-contact time’, such as report writing and meetings to discuss pupil allocation, but that VMTs would receive an additional payment if they were required to attend training [100].

[25]Despite his concerns about the terms on offer, the Claimant felt under pressure to sign the new employment contract in order to preserve his livelihood. An email from the Headmaster dated 1 July 2021 to the Claimant’s colleague, Dave Price, indicates that the VMTs’ hourly rate of pay would be kept under review but that ‘nothing can be done for September at this stage’ [180]. An email from Nick Salwey, Acting Master of Music, dated 23 November 2021 states that two meetings were due to take place to discuss VMTs’ pay progression and other contractual terms [194]. However, the VMTs’ concerns were never fully resolved and the contract dated 10 June 2021 was not revised.

[26]The key terms of the new employment contract were as follows:a. The Claimant was employed as a VMT from 1 September 2021.

b. His continuous employment started from that date and no previous employment counted. (I accept that this clause may have been included in error. In any event, it does not necessarily reflect the correct computation of the Claimant’s continuous service under the relevant statutory provisions.)

c. Three college ‘terms’ were defined: 1 January to 31 March; 1 April to 31 August; and 1 September to 31 December.

d. One full term’s written notice was required to terminate the contract, with notice expiring at the end of a term (i.e. on 31 March, 31 August or 31 December).

e. There were detailed provisions governing pre-employment checks; duties and responsibilities; training requirements; place of work; the ‘zero hours’ nature of the arrangement; confidentiality; post-termination restrictions; pension entitlement; contractual sick pay; statutory paid leave; and capability, disciplinary and grievance procedures.

f. Clause 9 stated: ‘Your duties include, but are not limited to, providing individual personal tuition in your subject/instrument in accordance with a timetable to be agreed with the College. In addition you are required to carry out all duties of a visiting music teacher as reasonably directed by the Master of Music. Your duties will include but are not limited to the description at Schedule 1 entitled Role of the Visiting Music Teacher.’

g. The Claimant would teach blocks of 30 lessons per pupil (ten per term), with half a term’s notice should the pupil or the VMT wish to cease the lessons.

h. The hourly rate of pay was £33.39 if the Claimant joined the Teachers’ Pension Scheme; £40.33 if he joined the Respondent’s defined contribution pension scheme; and £43.46 if he opted out of both schemes – clause 22.

i. The hourly rate included all non-contact time except compulsory training, for which an additional payment would be made.

j. Clause 23 provided: ‘Your pay will be calculated so that you receive an annual salary which will be paid monthly in arrears at the end of the month directly into a bank account or building society account nominated by you. Your salary represents payment for the hours that you work including paid annual leave, but has been adjusted so that you will be paid in 12 equal monthly instalments.’

k. The holiday year ran from 1 September to 31 August, and the Claimant was entitled to 5.6 weeks’ annual leave including public holidays – clause 29.

l. Clause 30 provided: ‘Holiday will be deemed to be taken during the Christmas, Easter and summer College holiday periods when you will not be working at the College and when you will continue to receive your salary.’

m. There was no contractual right to carry-over or payment in lieu of unused holiday during employment, but the Claimant was entitled to a payment in lieu of unused annual leave on termination.

n. There was an ‘entire agreement’ clause stating that the employment contract and those sections of the staff handbook that had contractual effect set out the entire agreement between the parties and were ‘in substitution for any terms of service and all previous agreements or arrangements which you may have with the College’ – clause 62.

[27]Schedule 1 to the contract contained further details about the duties of a musical instrument teacher. Paragraph 6 of Schedule 1 stated: ‘Where appropriate, and following consultation with the Master of Music, organise, promote, rehearse and direct appropriate ensembles as extra-curricular activities.’ This was a reference to the Claimant’s ongoing group tuition/ensemble work. As noted above, it had always been accepted that the Claimant was an employee in respect of that work.

[28]When the Claimant started work under the new contract in September 2021, there was no change in his day-to-day activities as a VMT. He was teaching largely the same pupils (a few pupils had left and others had joined, as one would expect at the start of a new school year). He gave lessons in the same room, using the same instruments and equipment. He offered each pupil 30 individual lessons over a teaching period of approximately 33 weeks, and it follows that he had around 19 non-teaching weeks during the college year during which he could take statutory annual leave. His group tuition/ensemble work also continued.

[29]In October 2021, the VMTs received a ‘Questions and Answers’ document about the new employment contracts [121]. This included the following advice: Q: Please can you confirm how the salary will be worked out, and what happens if a pupil leaves or joins mid-year? A: The annual salary will be worked out as the hourly rate x 30 lessons (depending on duration) and payment will be over twelve months. An adjustment will be made to your account for any amendments at the end of each term… Q: What about non-contact time? Do we get a further payment for meetings, training, emails etc? A: The hourly rate includes an amount for all necessary non-contact time that is relevant to the pupil(s) you are teaching. Provided you are requested to attend such a meeting or training session, you will be fully reimbursed by claiming via timesheets… Q: Is the holiday pay variable, depending on how many hours each teacher has? A: The rate of holiday pay is the same for all visiting music teachers. Your hourly rate of pay is incorporated into this calculation of 5.6 weeks holiday pay as all [Winchester College] employees. This calculation will be made available within your November 2021 payslip. Q: Will there be an enhanced rate for the ensembles? A: Yes, there will. The enhanced rate will be claimed via timesheet and will be paid monthly. [The rates were then set out in a table.]

[30]Regarding clause 23 of the contract, I accept the Claimant’s evidence (which was not contradicted by Mrs Broughton) that there had been discussions between the college and the VMTs about the frequency of payment, with various options – including payment over ten or 11 months – being discussed in the consultation period leading up to the new contracts being issued. The Claimant had told the Respondent that he favoured payment in 12 equal monthly instalments in order to assist cashflow. I accept Mrs Broughton’s evidence that all VMTs were paid in 12 annual instalments once the new employment contracts came into effect.

[31]The Claimant’s payslips for the period September 2021 to August 2023 were included in the bundle [149–172]. His gross monthly pay was £1,364.33 during the period September – December 2021, and £1,296.12 from January 2022 until August 2022. During the 2022/23 academic year, his gross pay varied significantly from month to month, falling within the range £1,374.01 (July 2023) to £1,735.60 (May 2023). The reason for these monthly variations was unclear and Mrs Broughton was unable to shed much light on them, beyond her suggestion that the Claimant might have had pay deducted if he were unable to take a lesson. I accept that adjustments would need to be made to the Claimant’s monthly pay when new pupils started music lessons and when existing pupils left, but half a term’s notice had to be given of such changes, so this does not explain why the Claimant’s basic pay varied from month to month during the final year of his employment.

[32]Nine of the Claimant’s payslips issued during the period September 2021 – August 2023 included overtime on top of his basic salary. These overtime payments were referable to the Claimant’s ongoing group tuition/ensemble work, for which he continued to invoice the Respondent on an ad hoc basis, according to his choice and convenience. The amounts of overtime pay shown on the payslips were highly variable, ranging from £10.85 (February 2023) to £2,501.88 (December 2022).

[33]None of the Claimant’s payslips during the period September 2021 – August 2023 gave a separate figure, percentage or calculation for holiday pay, either in respect of his basic monthly salary or in respect of the overtime payments. Mrs Broughton accepted in cross-examination that she had not seen any calculation to substantiate the Respondent’s assertion in the amended grounds of resistance that the Claimant’s holidays accrued at the rate of 12.07% of hours worked.

[34]In January 2023, another VMT, Karen Wills, raised a query about holiday pay with Sarah Baldock, Head of Music. Ms Wills asked Ms Baldock how much of the hourly rate was holiday pay and whether the arrangement was lawful. Ms Baldock sent the following response on 13 February: ‘I have checked it out with HR and don’t think there’s a problem.’ She went on to recite clauses 29 and 30 of the VMTs’ employment contract [126].

[35]On 24 March 2023 the Claimant attended a meeting with Ms Baldock and was given verbal notice of termination by reason of a restructuring. This was confirmed in writing on 30 March 2023 [127]. His employment with the Respondent ended on 2 July 2023. Legal framework Working Time Regulations 1998

Legal framework

[36]Under reg 13(1) of the Working Time Regulations 1998 (SI 1998/1833) (‘WTR’), which implemented the EU Working Time Directive, a worker is entitled to four weeks’ annual leave in each leave year. Reg 13(9) provides: ‘Leave to which a worker is entitled under this regulation may be taken in instalments, but (a)… it may only be taken in the leave year in respect of which it is due, and (b) it may not be replaced by a payment in lieu except where the worker’s employment is terminated.’ There is a separate right, purely domestic in origin, to 1.6 weeks’ additional leave under reg 13A(2). Thus, a worker’s total statutory annual leave entitlement under the WTR is 5.6 weeks.

[37]Statutory holiday pay is calculated in accordance with reg 16 WTR, and the case law of the European Court of Justice (‘ECJ’) has established that it must equate to the worker’s ‘normal remuneration’. Under reg 14 WTR, there is a right to payment in lieu of unused leave (whether under reg 13 or 13A) where a worker’s employment is terminated during the course of the leave year. The version of reg 14 in force at the relevant time provided:(1) Paragraphs (1) to (4) of this regulation apply where – (a) a worker’s employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (‘the termination date’), the proportion he has taken of the leave to which he is entitled in the leave year under regulation 13 and regulation 13A differs from the proportion of the leave year which has expired.

(2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3)… (5) Where a worker’s employment is terminated and on the termination date the worker remains entitled to leave in respect of any previous leave year which carried forward under regulation 13(10) and (11), the employer shall make the worker a payment in lieu of leave equal to the sum due under regulation 16 for the period of untaken leave.

[38]Reg 13(10) and (11), referred to in reg 13(5) (above), dealt with carry-over of leave during the COVID-19 pandemic and have since been revoked.

[39]A worker may present a complaint to an employment tribunal that his employer has ‘refused to permit him to exercise’ the right to annual leave under reg 13 or 13A or ‘failed to pay him the whole or any part of any amount due to him’ as statutory holiday pay – reg 30(1)(a) and (b) WTR. Any such complaint must be presented ‘before the end of the period of three months… beginning with the date on which it is alleged that the exercise of the right should have been permitted… or, as the case may be, the payment should have been made’, subject to an extension where it was not reasonably practicable for the complaint to be presented within that period, in which case the claim must be presented ‘within such further period as the tribunal considers reasonable’ – reg 30(2)(a) and (b). Employment Rights Act 1996 – unauthorised deductions

[40]The three-month time limit under reg 30 WTR means that a claim has to be submitted every time a worker is denied his or her statutory holiday entitlement. Workers can avoid this difficulty by bringing holiday pay claims for a ‘series of deductions’ from wages under section 13 of the Employment Rights Act 1996 (‘ERA’), which prohibits unauthorised deductions from wages – Revenue and Customs Commissioners v Stringer

[2009] ICR 985

, HL. A claim in respect of a ‘series of deductions’ must generally be brought within three months of the last deduction in the series – section 23(3) ERA. This is subject to an extension where it is not reasonably practicable for the complaint to be presented before the end of the three-month period, and the claimant has presented it within such further period as the tribunal considers reasonable – section 23(4).

[41]In Bear Scotland Ltd v Fulton and anor and another case

[2015] ICR 221

, EAT, Mr Justice Langstaff, then President of the EAT, held that whether there is a series of deductions is a question of fact: ‘series’ is an ordinary word, which has no particular legal meaning. There must be a sufficient factual and temporal link between the underpayments. This requires sufficient similarity of subject matter, so that each event is factually linked, and a sufficient frequency of repetition. This reasoning was approved in Chief Constable of the Police Service of Northern Ireland and anor v Agnew and ors

[2024] ICR 51

, SC, where it was held on the facts relating to underpayment of holiday pay that each unlawful deduction was linked to its predecessor by the ‘common fault or unifying vice’ that holiday pay had been calculated by reference to basic pay rather than normal remuneration.

[42]The scope for recovering arrears of holiday pay by this route was curtailed by section 23(4A) ERA, inserted by the Deduction from Wages (Limitation) Regulations 2014 (SI 2014/3322), which provides: ‘An employment tribunal is not… to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint.’ In Afshar and ors v Addison Lee Ltd ET Case No.3306435/2020 an employment tribunal held that the two-year backstop is unlawful. The Afshar decision is being appealed to the EAT and a hearing is expected to take place in January 2027. Sash Window claims

[43]In King v Sash Window Workshop and anor

[2018] ICR 693

, ECJ, Mr King worked under a ‘self-employed commission-only contract’ from 1999 until he retired in 2012. He received no payment for annual leave. On a reference by the Court of Appeal, the ECJ held that, in the case of a dispute between a worker and his employer as to whether the worker is entitled to paid annual leave, the Working Time Directive and the right to an effective remedy in Article 47 of the Charter of Fundamental Rights of the European Union preclude the worker having to take his leave first before establishing whether he has the right to be paid in respect of it. The Court further held: Article 7 of [the Directive] must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

[44]Subsequently, in Smith v Pimlico Plumbers Ltd

[2022] ICR 818

, CA, the Court of Appeal held that a worker who took unpaid annual leave over a period of several years, having been wrongly told that he was an independent contractor with no right to paid holiday, could bring a claim in respect of his entire accrued holiday entitlement under the Directive, going back to the start of his contract. The Court confirmed that the right to annual leave and to payment in respect of it are ‘two aspects of a single composite right’. It concluded at paragraph 102: If a worker takes unpaid leave when the employer disputes the right and refuses to pay for the leave, the worker is not exercising the right. Although domestic legislation can provide for the loss of the right at the end of each leave year, to lose it, the worker must actually have had the opportunity to exercise the right conferred by the [Working Time Directive]. A worker can only lose the right to take leave at the end of the leave year (in a case where the right is disputed and the employer refuses to remunerate it) when the employer can meet the burden of showing it specifically and transparently gave the worker the opportunity to take paid annual leave, encouraged the worker to take paid annual leave and informed the worker that the right would be lost at the end of the leave year. If the employer cannot meet that burden, the right does not lapse but carries over and accumulates until termination of the contract, at which point the worker is entitled to a payment in respect of the untaken leave.

[45]In an appendix to its judgment, the Court of Appeal suggested the following additional wording be read into reg 13 WTR (as sub-regulation (16)) in order to reflect the effect of Sash Window and other relevant case law: Where in any leave year an employer(i) fails to recognise a worker’s right to paid annual leave and

(ii) cannot show that it provides a facility for the taking of such leave, the worker shall be entitled to carry forward any leave which is taken but unpaid, and/or which is not taken, into subsequent leave years.

[46]The Court also read words into reg 14(5) allowing a worker in that situation to recover a payment in lieu of unused or unpaid leave upon termination. Reg 14(5), which has since been revoked, dealt with payments in lieu of unused leave carried forward from a previous leave year under the COVID-19 carryover provisions.

[47]The domestic provisions applicable before the end of 2023 (the relevant period for the purposes of this claim) must be read in light of the ECJ and domestic case law on the Working Time Directive, allowing the worker to carry leave over from year to year, and recover a payment in lieu upon termination, where the employer has denied the right to paid annual leave. The WTR were amended in 2024 to achieve that effect but the facts of this case pre-date the amendments. The two-year backstop in section 23(4A) ERA does not have any effect on claims brought under the principle established in Sash Window because such claims are brought under the WTR, as interpreted in light of the relevant case law. Where a worker complains that he or she has been denied the right to paid leave, such a claim does not rely on there being a series of deductions. It is based on the principle that the untaken or unpaid holiday entitlement is carried over from year to year until termination, when a single payment in lieu under reg 14 WTR falls due. Rolled-up holiday pay

[48]In Robinson-Steele v RD Retail Services Ltd and other cases

[2006] ICR 932

, ECJ, the ECJ resolved the question of the lawfulness of rolled-up holiday payments for the purposes of EU law. It held that such payments were contrary to Article 7 of the Working Time Directive, but that employers could set off genuine holiday payments paid under the rolled-up method against a worker’s entitlement to payment when he or she actually took leave, provided such sums had been paid ‘transparently and comprehensibly’ as holiday pay. The burden was on the employer to prove transparency and comprehensibility.

[49]In Lyddon v Englefield Brickwork Ltd

[2008] IRLR 198

, EAT, the Employment Appeal Tribunal endorsed the guidance given in Smith v AJ Morrisroes and Sons Ltd and other cases

[2005] ICR 596

, EAT, and applied it when deciding whether an employer should be given credit for rolled-up holiday payments. The EAT in Smith had held that ‘there must be mutual agreement for genuine payment for holidays representing a true addition to the contractual rate of pay for time worked’. This would be best evidenced by:(a) the provision for rolled-up holiday pay being clearly incorporated into the contract of employment;

(b) the percentage or amount allocated to holiday pay (or particulars sufficient to enable it to be calculated) being identified in the contract, and preferably also in the payslip; and

(c) records being kept of holidays taken (or of absences from work when holidays could be taken) and reasonably practicable steps being taken to ensure that workers took their holidays before the end of the holiday year. Termination or variation?

[50]It is sometimes necessary to determine whether a change which has been agreed between the parties takes the form of a variation of the original contract or a termination of the original contract and its replacement by a new contract. Chitty on Contracts puts it as follows: ‘The category into which a particular change will fall depends upon the intention of the parties, objectively ascertained, as gathered from all the facts and circumstances of the case’ (paragraph 26-036).

[51]In Cobalt Data Centre 2 LLP and another v Revenue and Customs Commissioners

[2024] 1 WLR 5213

, SC, the Supreme Court considered where the boundary lay between variation and replacement of a contract (paragraphs 129–156). Having reviewed the relevant authorities, Lord Briggs and Lord Sales JJSC (with whom Lord Burrows, Lady Rose and Lord Richards JJSC agreed) stated that ‘the common intention of the parties governs the nature of the contractual arrangements between them’ (paragraph 139).

[52]The Supreme Court’s review of the authorities included the following passage: Mr Ewart [counsel for the Revenue and Customs Commissioners] sought to suggest that Lord Atkinson [in Morris v Baron

[1918] AC 1

] held that there was a rule of law to the effect that if there was a fundamental difference between the original contract and the later contract, the later contract had to be taken to “rescind” the original contract. We do not accept this. Lord Atkinson, like the other law lords, held that the question whether the later contract set aside the original contract depended on the intention of the parties, to be gathered from all the circumstances. The fact that the agreed alterations to their contractual relationship were fundamental was certainly relevant to the ascertainment of their common intention to rescind the original contract rather than to vary it, but that fundamentality did not operate as a separate rule of law, regardless of intention. [paragraph 136]

[53]At paragraph 142 of its judgment, the Supreme Court considered the issue of variation or replacement in the context of contracts of employment, specifically the case of Cumbria County Council v Dow and others

[2008] IRLR 109

, EAT, where the Employment Appeal Tribunal held at paragraphs 36–37: The task in each case is to determine the intention of the parties. This involves establishing whether there is evidence objectively to show that there was an agreement as to the mechanism to be adopted. If the change is not of a fundamental nature, the only proper inference is that there was a variation unless we are satisfied that there was, objectively viewed, an express agreement that the mechanism to be adopted was the termination and new contract route. In determining that issue, the reasoning of the majority is as follows. First, in our judgment, where there is clear evidence that both parties have signed what is stated in terms to be a new contract, that is conclusive evidence that the termination route has been chosen. We do not accept that other factors can detract from the plain language of the agreement.

[54]The Supreme Court in Cobalt Data Centre commented on Dow as follows: If the parties had expressly agreed which mechanism would be used, their choice would be determinative. Otherwise, their intention would have to be inferred. If the change was not fundamental, the inference would be that they intended there to be a variation. Again, the lack of fundamentality was a pointer to the parties’ common intention as to mechanism, not a rule of law dictating the outcome. [paragraph 142]

[55]The Supreme Court added: [T]he centrality and force of the principle of freedom of contract means that, purely in terms of the general common law, parties to an agreement have a wide margin of choice in deciding whether an alteration in their contractual relationship should be achieved by the mechanism of variation or replacement. This is generally a matter to be determined according to their common intention, assessed in the usual objective way, within wide parameters and subject to limits only at the margins… [paragraph 151] ‘Entire agreement’ clauses

[56]‘Entire agreement’ or ‘entire contract’ clauses are generally upheld in a commercial context – see, for example, MWB Business Exchange Centres Ltd v Rock Advertising Ltd

[2019] AC 119

, SC, which concerned a ‘no oral modification’ clause in a licence to occupy premises. However, the case law indicates that a more nuanced approach may be appropriate in the context of employment contracts. Where a party relies upon an ‘entire agreement’ clause in that context, courts and tribunals are entitled to scrutinise the reality of the contractual dealings between the parties to satisfy themselves that the written contract does indeed accurately represent the whole bargain. If there are inconsistencies in the way the contract is performed in practice, then the clause is unlikely to be conclusive – see, for example, Bushaway v Royal National Lifeboat Institution

[2005] IRLR 675

, EAT. Discussion and conclusions Did the VMTA end on 3 July 2021 or 31 August 2021?

Discussion and conclusions

[57]The Respondent accepts that the Claimant was both a worker and an employee in respect of his individual tuition work during Period One, and that he had been misclassified as self-employed and was denied the opportunity to take paid annual leave – see paragraph 21 of the amended grounds of resistance [31]. In principle, therefore, it is common ground between the parties that he would have a claim for that period under the principles established in Sash Window.

[58]However, the Respondent says that the VMTA terminated on 3 July 2021, at which point any potential holiday pay claim in respect of Period One crystallised and the three-month primary time limit for bringing an employment tribunal claim started to run. The Respondent contends that the claim is out of time because it was presented over two years late, on 30 November 2023.

[59]The first question I must address is whether the VMTA ended on 3 July 2021 or 31 August 2021. For these purposes, I shall assume that there was a termination on one or the other of those dates, but this is without prejudice to the Claimant’s argument – to be addressed separately below – that there was no termination at common law or for the purposes of the principles set out in Sash Window. If the VMTA ended on the earlier of those two dates, the significance is that there will have been a gap over the summer holidays during which no contract was in existence, supporting the Respondent’s argument that any potential holiday pay claim in respect of the Claimant’s individual tuition crystallised at the end of Period One and is now time-barred.

[60]The notice of termination given to all VMTs on 29 March 2021 stated: ‘I write to formally give a term’s notice, 19th April 2021 to 3rd July 2021, of the termination of your engagement as a self-employed Visiting Music Teacher at Winchester College.’ This was followed by a timeline that included the following sentence: ‘31 August 2021: all existing Visiting Music Teacher service agreements cease.’

[61]To the extent that this email was ambiguous, arguably it should be construed against the Respondent. However, I think its meaning is plain. In my view, the phrase ‘19th April 2021 to 3rd July 2021’, read in context, is a reference to the start and end dates of the summer teaching term, with 19 April being the date when the students were due to return to school and 3 July being the date on which they were due to break up. It was included in the email only to demonstrate that at least one full term’s notice of termination was being given in accordance with clause 19 of the VMTA.

[62]The clear meaning of the subsequent wording was that all VMTAs, including the Claimant’s, would terminate on 31 August 2021. I do not accept the Respondent’s submission that this wording, read in context, is merely a generic timeline. I conclude that 31 August was the termination date of the VMTAs, with the new employment contracts coming into effect on the following day, 1 September.

[63]This interpretation of the notice of termination is consistent with the reality of the Claimant’s work. For many years, he had carried out administrative tasks during the summer break in preparation for the new term, even though he did not teach lessons over the summer. To that extent, he was in the same position as any other teacher at the college. Under the terms of the VMTA, he was paid only for his hours of tuition during term time, but it does not follow that there was no contract in place over the summer holidays or that no work was carried out then. The new academic year’s teaching arrangements were not simply sprung on the Claimant at the start of the autumn term. I accept that some administrative and preparatory work was undertaken by him during the summer of 2021, just as it had been during previous summer holidays when it is not disputed that the VMTA continued in existence.

[64]I note that the Claimant’s new employment contract defined the summer term as running from 1 April to 31 August and stipulated that one full term’s written notice of termination was required, with notice expiring at the end of a term (i.e. on 31 August in the case of the summer term). However, I do not rely on this in support of my conclusion regarding the termination date of the VMTA, because the VMTA did not include this definition of a ‘term’. Was the withdrawal of the VMTA a termination for the purposes of Sash Window?

[65]The next question is whether the Claimant’s potential Sash Window claim in respect of his individual tuition during Period One crystallised on 31 August 2021, when the VMTA was withdrawn (to use a neutral term) and superseded by the new employment contract. Different considerations apply to his group tuition/ensemble work and I will address this separately in the next section.

[66]It was common ground that the effect of Sash Window and Pimlico Plumbers is that, where a worker is denied the right to paid annual leave, his or her statutory holiday rights in respect of the four weeks’ leave under reg 13 accrue and roll over from year to year, and if the contract is subsequently terminated the worker is entitled to payment for all of the outstanding leave through the mechanism of reg 14 WTR. The right under reg 14 arises when a worker’s contract is terminated, and Mr Ohringer submitted that this must be assessed by reference to ordinary contractual principles. He said that there was a ‘termination’ for these purposes when the VMTA came to an end and was replaced by the contract of employment. He noted that reg 14 WTR applies where ‘a worker’s employment is terminated during the course of his leave year’. ‘Termination’ is not defined in the WTR but reg 2 defines ‘employment’, in relation to a worker, as ‘employment under his contract’.

[67]Ms Nicholls submitted that the Claimant was in fact an employee throughout Period One (this is now accepted by the Respondent) and that his employment continued seamlessly beyond 31 August 2021. She said there was no break in his relationship with the college and his role remained the same. To regard the withdrawal of the VMTA as a termination would be artificial, because the Claimant had always been an employee and the written contract of employment simply reflected the reality of the parties’ previous relationship. For these reasons, Ms Nicholls contended that the claim for unpaid annual leave in respect of Period One did not crystallise on 31 August 2021 and the Claimant was entitled to accrue and carry over his unpaid holiday until July 2023, when he was dismissed.

[68]The right to a payment in lieu under reg 14 depends on a worker’s contract having been terminated. This is reflected in the relevant case law applying Sash Window in a domestic context. In Pimlico Plumbers the Court of Appeal held that where a worker is denied the right to paid annual leave ‘the right does not lapse but carries over and accumulates until termination of the contract’ (my emphasis), at which point the worker is entitled to a payment in respect of it. Furthermore, the mechanism suggested by the Court for recovering such a payment involved reading words into reg 14(5) WTR, which has since been revoked but which used to apply ‘where a worker’s employment is terminated’. I consider myself bound by Pimlico Plumbers to conclude that the Claimant’s reg 14 rights crystallised on termination of his contract; this approach is consistent with the wording of reg 14. The question I must answer is when that termination took place.

[69]I accept Mr Ohringer’s submission that termination for the purposes of reg 14 must be considered by reference to ordinary contractual principles. Applying the principles set out in Cobalt Data Centre, I must seek to ascertain the parties’ common intention by reference to the surrounding circumstances. In light of all the facts and circumstances, I have concluded that it was not the parties’ intention simply to vary or supplement the terms of the existing VMTA in 2021. Instead, they chose the legal mechanism of expressly terminating one written contract and replacing it with another.

[70]In its email dated 29 March 2021, the Respondent gave clear notice to terminate the VMTA on 31 August 2021, with the new employment contract taking effect on 1 September. There had been extensive discussions in the runup to this change, with the ISM representing the interests of the VMTs. The VMTs were dissatisfied with some of the proposed terms but there is no indication that the mechanism for introducing the changes was ever in dispute. In any event, the Claimant signed the new contract to signify his agreement to it. Given the wording of the email dated 29 March and the surrounding circumstances, I conclude that both parties intended to terminate the previous self-employed contract and replace it with a written contract of employment. To adopt the words of the EAT in Cumbria County Council v Dow, ‘where there is clear evidence that both parties have signed what is stated in terms to be a new contract, that is conclusive evidence that the termination route has been chosen’.

[71]In support of her argument that there was no termination on 31 August 2021, Ms Nicholls submitted that the Claimant signed the new contract under protest against a backdrop of ongoing negotiations. He made clear when signing that he was doing so ‘subject to various concerns’, and he said in evidence that he regarded the new contract as no more than a ‘working document’. I accept that the Claimant felt under financial pressure to sign; no doubt he hoped there was scope for revisiting matters such as the hourly rate and the absence of payment for ancillary duties. Nevertheless, he was represented by the ISM and his signature indicated his agreement to the terms that were on offer. The fact that the contract was not subsequently renegotiated cannot change that position. In short, the Claimant agreed to the new contract, even though he had reservations and hoped there would be renegotiation and future changes.

[72]Ms Nicholls also placed reliance on the fact that the Claimant was a ‘misclassified employee’ during Period One (this was accepted by the Respondent in its amended grounds of resistance) and that his day-to-day duties as a VMT before and after 1 September 2021 remained essentially the same. I do not think this alters the position. The crucial point is that the parties expressly chose the legal mechanism of terminating the existing contract and replacing it with a new one. The ‘entire agreement’ provision in clause 62 of the new agreement, which purported to substitute the new contract in its entirety for the terms of the VMTA, is consistent with that analysis.

[73]If I had found that there was no express agreement as to the mechanism to be used, it would have been necessary to infer the parties’ intention from the surrounding circumstances. Adopting that approach, I would have reached the same conclusion. Ms Nicholls submitted that the changes introduced by the new contract were not fundamental and therefore it must be inferred that the parties intended to vary the agreement. In my view, however, the new contract went further than simply recognising that the Claimant was (and always had been) an employee. It introduced a substantially different and new set of legal rights and obligations, not all of which were a legally prescribed consequence of employee status. For example, the Claimant suffered a reduction in his hourly rate of pay; he also became entitled to contractual sick pay. Applying the principles in Cobalt Data Centre, the existence of significant differences between the old and the new contract would not automatically lead to the conclusion that this was a termination rather than a variation. Nevertheless, it would be a relevant consideration in ascertaining the parties’ intentions.

[74]I conclude that the VMTA terminated on 31 August 2021, both at common law and for the purposes of a claim based on Sash Window and reg 14 WTR. At that point, the Claimant could have brought a claim under reg 14. His accrued rights to paid holiday in respect of his individual tuition crystallised on that date and the primary time limit for bringing a claim under reg 14 started to run, meaning that the Sash Window claim in respect of individual tuition during Period One is significantly out of time.

[75]There was no sustained attempt by Ms Nicholls to argue that it was ‘not reasonably practicable’ for the Claimant to bring a claim within the three-month time limit. The Claimant’s evidence on this point was scant: he said that his focus was on obtaining a new contract rather than pursuing a tribunal claim for backdated holiday pay. That is perfectly understandable and, as Ms Nicholls says, it was a complicated legal situation. Nevertheless, Sash Window was decided in 2017, and the ISM’s legal team had mentioned the possibility of a backdated holiday pay claim in its letter to the college dated 13 May 2021 – a letter that the Claimant, as a workplace representative, accepted that he would have seen in draft form. In these circumstances, there is no scope for the ‘not reasonably practicable’ extension. The Claimant could have brought a claim at the time but chose not to do so. To the extent that his legal advisers may have been at fault, this is not a matter that would support an extension of time. Does the same analysis apply to group tuition/ensemble work?

[76]I have concluded that the Claimant’s accrued rights to paid holiday in respect of his individual tuition during Period One crystallised on 31 August 2021, when the VMTA was terminated. Does that analysis extend to his group tuition/ensemble work? It had always been recognised that the Claimant was an employee in respect of that work. Nevertheless, he did not receive statutory holidays or holiday pay for those duties during Period One; the Respondent did not attempt to argue otherwise. The fact that the Claimant could have taken his statutory annual leave during the school holidays does not mean that he did so, in circumstances where there was no written contract setting out his right to holidays and the Respondent did not issue statutory notice under reg 15 WTR requiring him to take holidays.

[77]It is clear from clause 3.4 of the VMTA that group tuition, including working with ensembles, was outside the scope of that agreement. The Respondent’s intention was to enter into a separate written employment contract governing group tuition/ensemble work, but for whatever reason this did not happen during Period One. I have found that the terms on which group tuition/ensemble work was carried out during that period were separate from those set out in the VMTA and were agreed verbally between the parties and/or evidenced by their conduct. The arrangement was that the Claimant would carry out the work as and when required and submit invoices based on an agreed hourly rate, which was higher than the rate paid for individual tuition, and that he would be paid through payroll subject to tax and National Insurance deductions. He was also entitled to membership of the Teachers’ Pension Scheme.

[78]Mr Ohringer argued that, despite the group tuition/ensemble work falling outside the scope of the VMTA, the verbal contract for that work was also terminated on 31 August 2021 at the latest, and a new contractual arrangement took effect on 1 September 2021. He submitted that the notice of termination dated 29 March 2021 applied to all the Claimant’s work at the college, not just individual tuition. In support of that analysis, he said that if the Claimant had decided not to accept the new employment contract and the individual tuition had therefore ceased, there was no suggestion that his group tuition/ensemble work at the college would have continued.

[79]I do not accept that the written notice to terminate the VMTA applied to the Claimant’s group tuition/ensemble work. That work did not fall within the scope of the VMTA and it follows that the notice terminating the VMTA could have no effect in relation to it. This is reinforced by the reference in the Respondent’s email to ‘the termination of your engagement as a self-employed Visiting Music Teacher at Winchester College’. The Respondent had always accepted that the Claimant was an employee in respect of his group tuition/ensemble work, so the termination notice cannot be interpreted as covering that aspect of his duties.

[80]If the Claimant had refused to sign the new employment contract, it seems very likely that his group tuition/ensemble work at the college would also have come to an end, but it does not follow that the termination of those duties would have been brought about by the email of 29 March 2021. In practice, there would probably have been a separate termination, either express or implied. In any event, that is not what happened: the Claimant signed the new contract and both strands of his work continued.

[81]Mr Ohringer further submitted that the group tuition/ensemble work fell within the scope of the new employment contract. He referred to clause 9 of that contract, which stated that the Claimant’s duties were not limited to providing individual personal tuition and included the duties set out in Schedule 1; and to paragraph 6 of Schedule 1, which stated that, where appropriate and following consultation with the Master of Music, the Claimant would ‘organise, promote, rehearse and direct appropriate ensembles as extra-curricular activities’.

[82]Despite the reference to ensemble work in Schedule 1, the focus of the written employment contract was individual tuition. In so far as its substantive terms can be construed as also applying to group tuition/ensemble work, the contract confirmed various aspects of the verbal agreement and the practical arrangements already in place – namely, that the Claimant was an employee in respect of his group tuition/ensemble work, was paid through payroll subject to the usual deductions, and was entitled to membership of a pension scheme.

[83]On the face of it, the effect of the ‘entire agreement’ provision in clause 62 was that the written employment contract stood in substitution for the previous verbal agreement relating to group tuition/ensemble work. In practice, however, the parties did not apply all the terms of the written contract to the Claimant’s ongoing group tuition/ensemble work. In particular, the invoicing and payment arrangements continued to be governed by the parties’ previous verbal agreement. Instead of payment being spread across the year in 12 monthly instalments in accordance with clause 23 of the written contract, the Claimant continued to submit invoices for that work and continued to receive payment on an ad hoc basis, with the payments appearing separately on his payslips as ‘overtime’. Furthermore, the hourly rate for this work was higher than the rates for individual tuition that were set out in the written contract.

[84]In these circumstances, I consider that the ‘entire agreement’ clause did not reflect the reality of the parties’ dealings and should not be treated as conclusive. The written contract did not set out all the relevant terms relating to group tuition/ensemble work. It did not entirely replace the existing verbal agreement and it did not preclude elements of that agreement from continuing to have effect.

[85]The parties had originally intended that the verbal agreement regarding group tuition/ensemble work would be formalised by a written employment contract, as is clear from clause 3.4 of the VMTA. Given the lack of detail in their existing arrangement, it must have been within their contemplation that any such contract would expand on their rights and duties. Viewed in that light, the subsequent written employment contract can be seen as articulating the terms of an employment relationship that the parties had always envisaged would be reduced to writing. It confirmed the existing arrangement and introduced additional rights and obligations.

[86]If an employee starts work pursuant to an oral agreement and is told that a written employment contract will be issued in due course, it would be unusual to regard that contract, when it later materialises, as having the effect of terminating the existing agreement. In the present case, many years passed before the Respondent issued a written contract, but in my view similar considerations apply.

[87]When the written contract was introduced in 2021, there was no express agreement about the legal mechanism to be used in relation to group tuition/ensemble work (i.e. variation or termination). The focus of the parties’ discussions at that time was individual tuition and the termination of the VMTA. The existing verbal agreement governing group tuition/ensemble work was never expressly terminated and the ‘entire agreement’ clause in the new contract is not conclusive for the reasons I have given. The parties’ intention must be inferred from the surrounding circumstances.

[88]Having regard to all the circumstances, I infer that the parties’ intention in 2021 was to vary the existing verbal agreement relating to group tuition/ensemble work rather than to terminate and replace it. A written contract was superimposed on an existing employment relationship in order to formalise and supplement the arrangement, in circumstances where that had been the parties’ intention since at least 2010, if not earlier. This analysis is reinforced by the fact that the invoicing and payment arrangements under the verbal arrangement continued, despite the written contract envisaging a different approach.

[89]In relation to group tuition/ensemble work, I conclude that there was no termination at common law or for the purposes of Sash Window and reg 14 WTR on 31 August 2021. It follows that the Claimant’s holiday rights in respect of his group tuition/ensemble work did not crystallise until 2 July 2023 (the end of Period Two). Did the Claimant receive paid annual leave during Period Two?

[90]The next question is whether the Claimant was afforded paid holidays from 1 September 2021 to 2 July 2023, when he was working under the new employment contract. In the amended grounds of resistance, the Respondent argued that the Claimant received rolled-up holiday payments throughout this period, and that they could be offset against his entitlement to holiday pay under the principle in Robinson-Steele.

[91]Mr Ohringer, however, did not pursue this point. I consider he was right not to do so. I would have rejected the argument that holiday pay was ‘rolled up’ within the Claimant’s hourly rate and could be offset against his statutory holiday pay entitlement. The Questions and Answers document stated: ‘Your hourly rate of pay is incorporated into this calculation of 5.6 weeks holiday pay… This calculation will be made available within your November 2021 payslip.’ However, none of the Claimant’s payslips contained any reference to holiday pay. There was no attempt to quantify the amount of holiday pay or to specify a percentage. There was no true addition to the contractual rate of pay for time worked; this is reinforced by the fact that the Claimant’s hourly rate of pay for individual tuition after September 2021 was in fact lower than the rate he had been receiving previously, at a time when the Respondent did not recognise his right to paid holidays. The Respondent has failed to satisfy the burden of establishing that any sums have been paid transparently and comprehensibly as holiday pay, and such sums therefore cannot be offset against the Claimant’s entitlement.

[92]In his closing submissions, Mr Ohringer advanced a very different argument. He no longer sought to rely on the offsetting principle under Robinson-Steele. Instead, he argued that the Claimant was in receipt of a salary paid throughout the year; he was required to take annual leave during the school holidays and did so; and he was paid his normal salary during those periods, in line with the Burgundy Book arrangements that applied to other teachers. The Claimant therefore took, and was paid for, annual leave. Mr Ohringer said it did not matter how the hourly rate was negotiated or how holiday pay was factored in: there was no need for the Respondent to show its workings. The crucial point was that the hourly rate was converted into a salary which was paid throughout the year, whether the Claimant was at work or on holiday. It followed that he was paid during periods of annual leave on the same basis as he was paid while working; he received his normal remuneration, as required by the ECJ case law.

[93]I accept that the Claimant had the opportunity to take 5.6 weeks’ annual leave during the school holidays, and that in fact he did so during Period Two. Clause 30 of his contract provided: ‘Holiday will be deemed to be taken during the Christmas, Easter and summer College holiday periods when you will not be working at the College and when you will continue to receive your salary.’ I consider that this clause was a valid notice specifying the days on which the Claimant could take annual leave for the purposes of the statutory notice provisions in reg 15 WTR, or alternatively that it amounted to a ‘relevant agreement’ varying or excluding those provisions – Industrial and Commercial Maintenance Ltd v Briffa EAT 0215/08.

[94]The precise dates on which annual leave was taken by the Claimant are unclear and may not matter. In my view, he should be regarded as having taken a proportionate amount of his annual leave entitlement during each of the three main college holidays. If, for example, the Christmas and Easter breaks were three weeks each, and the summer break were eight weeks, he would take 1.2 weeks’ leave at Christmas (3/14 x 5.6 weeks), a further 1.2 weeks’ leave at Easter, and 3.2 weeks’ leave over the long summer break (8/14 x 5.6 weeks).

[95]The key question is whether the Claimant received holiday pay in respect of his statutory leave. His employment contract stated: ‘Your salary represents payment for the hours that you work including paid annual leave, but has been adjusted so that you will be paid in 12 equal monthly instalments.’ A salary normally connotes a fixed, regular payment in exchange for work or services, typically expressed as an annual sum and paid at regular intervals. I am not satisfied that the payments made to the Claimant during Period Two amounted to a ‘salary’ in this sense. The basic monthly payments that appeared on the Claimant’s payslips were highly variable during the final year of his employment, and the Respondent was unable satisfactorily to explain the reason for the fluctuations. The Claimant was not paid in equal monthly instalments, despite the terms of the contract. The payments were calculated by reference to the hours that he taught, on the basis that each pupil would receive 30 hours’ tuition across the year, but adjustments had to be made when pupils joined and left (although this does not fully explain the monthly variation). Furthermore, there had been a discussion when the new contracts were negotiated as to the frequency of the payments, with payment over ten or 11 months of the year being mooted. This would have made it even more apparent that the Claimant was being paid for the hours he actually worked, as opposed to receiving a monthly salary.

[96]On the facts of this case, I do not accept Mr Ohringer’s suggestion that the Claimant was in the same position as any other schoolteacher. A class teacher’s monthly salary does not typically depend on the number of pupils in a class, nor on the number of lessons delivered each month. Lessons may occasionally be cancelled to accommodate school trips and additional lessons may be timetabled to allow for exam preparation; in either case, the class teacher’s monthly salary is unaffected. By contrast, the Claimant’s pay for individual music tuition was entirely a function of the number of pupils who signed up for his lessons and the number of lessons he delivered. It was a zerohours arrangement. His pay was adjusted when pupils started or discontinued instrumental music lessons, and if he missed a class he was expected either to reschedule it or to suffer a deduction from his pay. His right to what Mr Ohringer characterised as a ‘salary’ was in fact entirely dependent on the hours he taught: it was not a fixed salary at all, as the fluctuations in the payments demonstrate.

[97]The ‘overtime’ payments for the Claimant’s group tuition/ensemble work – as distinct from his individual tuition – depended entirely on when he chose to present invoices. They were sporadic, appearing on approximately one third of the Claimant’s payslips during the relevant period, and they related directly to the number of hours actually worked by the Claimant. There was no attempt by the Respondent to present these payments as a regular monthly salary.

[98]I conclude that, throughout Period Two, the Claimant was paid only for the hours he worked, as opposed to being in receipt of a salary that was paid every month regardless of whether he was at work or on holiday. Some of the payments were made during college holidays, but they were for the individual tuition and group tuition/ensemble work that he carried out during term-time.

[99]In conclusion, the Claimant did not receive any statutory holiday pay from 1 September 2021 until 2 July 2023, either for his individual tuition or for his group tuition/ensemble work. Holiday pay for ancillary duties

[100]The Claimant also sought holiday pay in respect of additional duties such as report writing. Any such claim can only be based on the remuneration which the Claimant received or that to which he was contractually entitled. The Respondent’s position was that the Claimant’s hourly rate covered all necessary non-contact time, such as report writing and meetings to discuss pupil allocation. There was no contractual entitlement to additional payment for such duties; that was expressly stated in the new employment contract. I agree with Mr Ohringer that this is essentially a dispute about a pay increase. It follows that there can be no claim for holiday pay in respect of ancillary duties. However, to the extent that any other additional payments for contractual duties (such as attendance at training days) were made, they must be taken into account in the calculation of the Claimant’s outstanding holiday pay.

Conclusions

[101]Throughout Period Two (1 September 2021 – 2 July 2023), the Claimant took annual leave during the school holidays but received no statutory holiday pay for leave taken under reg 13 or 13A. He is entitled to recover his holiday pay as a series of unauthorised deductions from wages.

[102]I am satisfied that the deductions during Period Two were factually and temporally connected such as to form a ‘series’ for these purposes. On each occasion when the Claimant took leave, he received no pay. There will inherently be temporal gaps between successive holidays, and to the extent that those gaps were longer than usual in the Claimant’s case, this was a natural consequence of the fact that he could only take his statutory annual leave during the Christmas, Easter and summer holidays. The non-payments were linked by the common fault or unifying vice that the Claimant’s pay was calculated by reference to the hours that he worked during term-time and did not contain any element of holiday pay. The two-year backstop does not limit recovery because the period in question is less than two years. Compensation must be calculated by reference to the Claimant’s payments for both individual tuition and group tuition/ensemble work, as well as any other regular payments that he received for carrying out his contractual duties.

[103]In the alternative, the Claimant can recover holiday pay for Period Two by relying on reg 14 WTR as interpreted in Sash Window and Pimlico Plumbers. His rights crystallised on 2 July 2023, when the employment contract terminated. On that date, he became entitled to a single payment in lieu of his unpaid leave for the current and previous leave years. Under this route, however, the unpaid leave carried over from his penultimate holiday year (1 September 2021 – 31 August 2022) would be limited to the four weeks due under the Working Time Directive and reg 13 WTR, whereas reliance on the unauthorised deductions provisions in the ERA avoids that limitation, allowing him to recover payment for 5.6 weeks’ statutory leave in 2021/22, and for the appropriate proportion of 5.6 weeks’ leave in 2022/23.

[104]I have also concluded that the Claimant is entitled to recover holiday pay in respect of his group tuition/ensemble work (but not his individual tuition) during Period One. This aspect of his claim is for work beginning in summer 2008. The Claimant did not take any statutory annual leave (paid or unpaid) during Period One. His right to paid leave carried over from year to year and, because the contract governing his group tuition/ensemble work was varied in 2021 as opposed to being terminated, the time limit for bringing a claim did not start to run until 2 July 2023 (the end of Period Two). This claim is based on reg 14 WTR as interpreted in Sash Window and Pimlico Plumbers, and the Claimant is therefore limited to recovery of holiday pay in respect of the four weeks’ leave due under the Working Time Directive and reg 13 WTR.

[105]A remedies hearing has been listed provisionally for 17 April 2026 and directions have been issued. The parties indicated that, if the Claimant succeeded in all or part of his claim, they would be likely to reach a settlement, in which case they should advise the tribunal and the hearing date will be vacated. Approved by: