Mr N Liu v NGE Music Ltd: 3205638/2022
JUDGMENT
[1]The Claimant withdrew his claim for 4 days accrued but untaken holiday for the holiday year 2022, after further investigations and explanations from the Respondent at this hearing. That claim is therefore dismissed on withdrawal.[2]The Claimant is not owed any accrued but untaken holiday pay for the holiday year 2021. He claimed 16 days. He did not fall within the Working Time (Coronavirus) (Amendment) Regulations 2020 and therefore could not carry forward his untaken 2021 holiday of 16 days into the 2022 holiday year. This means that nothing was payable for the untaken 2021 holiday when his employment then terminated in September 2022.REASONS
[1]The Claimant claimed accrued but untaken holiday pay which he said was payable when his employment terminated in September 2022.[2]The first amount claimed was 16 days for the holiday year January-December 2021 (the 2021 holiday year) and the second amount was 4 days for the holiday year JanuaryDecember 2022 (the 2022 holiday year).[3]In relation to the 2021 holiday year entitlement, the Claimant did not claim that the Respondent had ever agreed to any carry forward of the 2021 holiday into 2022 or claim that he was allowed to carry it forward under his contract. His complaint was that he was not told by the Respondent that he needed to take all of the 2021 holiday by the end of 2021 or he would lose it. He did not claim that he had asked to take the holiday and the holiday request had been turned down.[4]The Respondent’s case in its response was that the Claimant had not carried forward any untaken holiday from the 2021 holiday year into the 2022 holiday year meaning that there was no accrued holiday from 2021 to be paid on termination when his employment ended in September 2022. The Respondent said in its response that the 4 days 2022 holiday year accrued holiday had been paid when the employment ended.[5]I was not provided with any documents by either party prior to this hearing but on discussion it emerged that subject to the circumstances pertaining during 2021 and in particular after the Claimant returned to work from furlough in September 2021, on which I could take oral evidence from each of them, the facts were largely agreed. The Respondent agreed the Claimant’s calculation of £115.40 (in his claim form) as being his daily gross pay if any accrued holiday pay was found to be due to him. For completeness I asked the Claimant to send in his final payslip after the hearing finished and I asked the Respondent to send the Claimant’s contract (or a sample/template of the one used at the time if his contract was not available), although these documents were not central to this decision. I received the payslip but not the contract; I did not need to see the contract however to decide the claim as nothing hung on its terms because the Claimant was not saying that the Respondent breached a term of his written contract about holiday pay.[6]I clarified with the parties the situation regarding the 4 days 2022 holiday given the Respondent said it had been paid and the Claimant said it had not and that his final payslip only showed his usual monthly salary (which matched what had been paid into his account). Mr Nustedt had some discussions with the Finance Director during this hearing and it emerged that the Claimant had in fact been overpaid his salary by one day in his final pay and that there had in fact been no extra accrued holiday payment for 2022 paid at that time (contrary to what the Respondent had said in its response to the claim); the Respondent now said that in fact the Claimant had taken all his holiday entitlement for the 2022 holiday year by the time he left, namely 16 days (ie what had accrued by September 2022), so he was not due any more. The Claimant accepted that explanation and no longer claimed the 4 days from 2022.[7]I heard brief oral evidence from the Claimant and Mr Nustedt and submissions on both sides.[8]The relevant law is contained in the Working Time Regulations 1998 (as amended by the Working Time (Coronavirus) (Amendment) Regulations 2020). Regulation 13(10) provides that where it is not reasonably practicable to take some or all of leave as a result of the effects of coronavirus (including on the worker, the employer, or the wider economy or society) the worker can carry forward that leave. Regulation 13(11) provides that if leave is carried over for that reason it can be carried forward and taken in the two leave years immediately following the leave year in respect of which it was due. Regulation 14(5) provides that holiday carried forward in this way can be paid on termination if not yet taken.Findings of fact
[9]The Claimant was furloughed in March 2020. By January 2021, the start of the 2021 holiday year, he was still furloughed and returned to work in September 2021. He took 4 days holiday shortly after returning to work in September 2021. He did not ask to take any more holiday at any other point during 2021. He did however ask in a general way when he booked those 4 days what ‘the situation’ on holiday was. This was a general question and he did not ask about any carry forward of holiday. It was unfortunate that he was not reminded by the Respondent to take his 2021 holiday by the end of the year.[10]I find that when the Claimant returned to work in September 2021 (with most other employees returning around the same time) the Respondent had not lost any staff compared to the pre pandemic picture. I find that the Respondent was busy at this time and so the Claimant was in turn busy but that the Respondent could and would have accommodated any request to take the balance of his holiday of 16 days between when he returned in September 2021 to the end of that holiday year in December 2021, as it did in relation to the 4 days the Claimant did take.[11]I find it was reasonably practicable for the Claimant to have taken the balance of his 2021 holiday entitlement during 2021. Even if in practice this meant taking it at an inconvenient time towards the end of the 2021 holiday year he could have taken it. It was very unfortunate that he did not realise that he needed to take it or he would lose it. He was not ill himself due to the coronavirus and the Respondent was not so busy that it could not have accommodated the taking of the balance of his 2021 holiday. The Claimant therefore did not fall within the situation in Regulation 13(10) Working Time Regulations 1998 (as amended).[12]When the Claimant’s employment then terminated in September 2022 it follows that he was not owed any 2021 holiday under Regulation 14(5) Working Time Regulations 1998 (as amended).[13]His claim for 16 days accrued but untaken holiday pay from the holiday year 2021 is therefore dismissed.