Ms I Abdulnasir v Sanctuary Oasis Services Ltd: 3303395/2024
JUDGMENT
[1]The claim for unpaid holiday pay under regulation 14 the Working Time Regulations 1998 was not presented within the applicable time limit. It was reasonably practicable to do so. The claim for unpaid holiday pay is therefore dismissed.REASONS
[1]This matter was listed for a hearing to consider the claimant’s claim for unpaid holiday pay. The claimant maintained that she was owed payment in respect of 170 hours holiday pay which she considered to be due to her on the termination of her employment. The respondent maintained that the claimant had accrued entitlement to 92 hours in holiday pay when her employment terminated and that she had been paid in full for that sum.[2]The claimant was employed between 28 March 2021 and 12 March 2023. She began ACAS conciliation on 29 January 2024 and an ACAS certificate was issued on 23 February 2024. Her ET1 was filed on 23 March 2024. The issues for determination were as detailed below.a. Does the Tribunal have jurisdiction to hear the complaint? Was the holiday pay claim made within the time limit in regulation 30 of the Working Time Regulations 1998? The Tribunal will decide: i. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination or the date on which the payment should have been made? ii. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? iii. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?b. If the Tribunal has jurisdiction to hear the complaint: i. What was the claimant’s leave year? ii. How much of the leave year had passed when the claimant’s employment ended? iii. How much leave had accrued for the year by that date? iv. How much paid leave had the claimant taken in the year? v. Were any days carried over from previous holiday years? vi. How many days remain unpaid?Evidence
[3]Orders for the case preparation steps had been made by the Tribunal. I was provided with a 50-page bundle of documents. The claimant failed to produce a witness statement and had failed to explain how she had arrived at the figure claimed by way of unpaid holiday pay. I therefore treated ET1 as the claimant’s witness statement for the purpose of the hearing. I heard evidence from the respondent’s HR and Payroll Manager, Ms. Pfuma Adekoya, who had produced a witness statement setting out her evidence. Whilst giving evidence the claimant suggested that an email was missing from the bundle. Following enquiries, it became clear that the email in question was a without prejudice email emanating from ACAS and that the respondent had previously explained to the claimant why this document needed to be excluded from the bundle.Facts
[4]The claimant was employed by the respondent as a Support Worker/Project Worker. Her employment began on 28 March 2021. The terms of her employment were set out in a contract dated 10 November 2022. Her hourly wage varied between £11.60 and £12.50 per hour, depending on the shifts that she worked. The contract stated that her hours of work would vary from week to week. She was entitled to 28 days holiday per year, pro-rated. Holiday pay was said to be based on average earnings over a 52-week reference period and was calculated in the following way “Number of hours worked/100 x 12.07 = Time accrued as annual leave”. On termination, the holiday entitlement would be calculated as 1/12 of the annual entitlement “for each completed month of service during that holiday year and any holidays accrued but not taken will be paid for”. The holiday year ran from 1 April to 31 March each year. The contract provided that conditions relating to the taking of holiday were set out in the employee handbook.[5]The excerpt from the employee handbook which I was provided with was from the handbook dated 2024. However, the respondent’s evidence, which I accepted, was that the earlier version of the handbook had dealt with holiday and carryover of holiday in the same terms. The handbook stated that employees were required to take their full annual holiday entitlement during the holiday year in which it accrued, no payment in lieu would be allowed for untaken holiday and nor was it permissible to carry over holiday entitlement to the next year unless in cases of “long term sickness”, “maternity, paternity, adoption, parental or shared parental leave”, where “permission in writing has been given” of “if otherwise required by law”. The handbook went on to state that on termination the entitlement was to be paid in lieu for accrued but untaken entitlement for the current holiday year, though it gave a different formula for calculating this rate 1/260 of pay for each day of untaken holiday.[6]The claimant had signed a contract of employment when her employment began but subsequently neither the claimant or the respondent were able to locate a copy of this document. This appears to have come to light because employees, including the claimant, of Sanctuary Oasis Limited were moved to Sanctuary Oasis Services Limited and moved on to a new payroll and application system. Following that move, the respondent had been unable to locate the claimant’s contract and so asked her to sign a further contract. It was not suggested by either party that there was any material difference in terms between the contract signed in November 2022 and that signed by the claimant when her employment began.[7]The claimant did not take any annual leave during her employment. She resigned her employment on 27 February 2023 giving two weeks’ notice, so that her contract terminated on 13 March 2023.[8]The respondent’s evidence, which I accepted, was that there had been some delay in finalising the claimant’s holiday pay because the respondent had not received all the claimant’s time sheets. That evidence was consistent with the fact that the claimant was paid in May and June for work undertaken before her resignation.[9]The claimant was paid £1,150 (gross) in relation to holiday pay for accrued but untaken leave. That payment was made on 31 June 2023 and represented payment for 92 hours at £12.50 per hour. It is not clear why the respondent arrived at this figure. The respondent now accepts that the claimant had accrued entitlement to 110.24 hours and, accordingly, it had paid a further £225.50 to the claimant on 27 January 2025.[10]Ms. Pfuma Adekoya’s statement set out how she had calculated the claimant’s entitlement to pay in relation to accrued but untaken leave during the year 2022/2023. The claimant worked 127.86 days during the year, an average of 2.46 days per week. Multiplying the annual leave entitlement of 28 days x 2.46 /5 generated a pro rata annual leave entitlement of 110.24 hours. 110.24 hours multiplied by £12.50 generated a figure of £1,378.[11]The claimant does not take issue with the amount which she was paid for the leave year 2022/2023. Her complaint is that she should have been paid for accrued but untaken holiday in the period March 2021 to 31 March 2022, which she considered amounted to 170 hours.[12]Having received a payment for holiday pay on 31 June 2023, the claimant took no further action in relation to her unpaid holiday pay until 22 September 2023 when she sent the respondent a text message saying that she had not been paid in full for her outstanding annual leave. She did not, however, contact ACAS to begin pre claim conciliation until 29 January 2024.[13]In oral evidence, the claimant explained that she had needed to travel for a family emergency in April 2023 and was out of the UK for four months which was why she had not pursued the issue of her annual leave sooner. The claimant also said that she had wanted to take annual leave in the 2021/2022 year but that when she had tried to book leave the respondent had said first that there was a problem with its app and then that there was a problem because her contract could not be located. The claimant made no reference to such matters in her ET1 and had produced no evidence to support her claims that she had been obstructed from taking leave in 2021/2022. The respondent disputed that there had been be any obstacle to the claimant booking annual leave had she wished to do so.Law
[14]In deciding whether it was not reasonably practicable to comply with a statutory time limit the following principles apply:a. The time limit should be given a liberal construction in favour of the employee (Dedman v British Building and Engineering Appliances Limited [1974] ICR 53).b. The burden of showing that it was not reasonably practicable to present a claim in time lies with the claimant.c. What factors are relevant to the consideration of reasonable practicability will vary from case to case. It will often be relevant to consider what an individual knew about the right to complain to the Tribunal and the applicable time limits. Unreasonable ignorance of the right to bring a claim or of applicable time limits will not render it not reasonably practicable to comply with those time limits.[15]At the time of the events complained of the Working Time Regulations 1998 (“the Regulations”) provided as follows 30.— Remedies(1) A worker may present a complaint to an employment tribunal that his employer– (a) has refused to permit him to exercise any right he has under–[ (i) regulation 10(1) or (2), 11(1),(2) or (3), 12(1) or (4), 13 or 13A; (ii) regulation 24, in so far as it applies where regulation 10(1), 11(1) or (2) or 12(1) is modified or excluded; [...] [ (iii) regulation 24A, in so far as it applies where regulation 10(1), 11(1) or (2) or 12(1) is excluded; or (iv) regulation 25(3), 27A(4)(b) or 27(2); or (b) has failed to pay him the whole or any part of any amount due to him under regulation 14(2) or 16(1). (2) [Subject to [regulation 30B] an employment tribunal] shall not consider a complaint under this regulation unless it is presented– (a) 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 in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made; (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three …… months (2A) Where the period within which a complaint must be presented in accordance with paragraph (2) is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (2).(3) Where an employment tribunal finds a complaint under paragraph (1)(a) well-founded, the tribunal– (a) shall make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the worker.(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to– (a) the employer’s default in refusing to permit the worker to exercise his right, and (b) any loss sustained by the worker which is attributable to the matters complained of.(5) Where on a complaint under paragraph (1)(b) an employment tribunal finds that an employer has failed to pay a worker in accordance with regulation 14(2) or 16(1), it shall order the employer to pay to the worker the amount which it finds to be due to him. 13.— Entitlement to annual leave (1) Subject to paragraph (5), a worker is entitled to four weeks’ annual leave in each leave year. (3) A worker’s leave year, for the purposes of this regulation, begins– (a) on such date during the calendar year as may be provided for in a relevant agreement; ….. (9) Leave to which a worker is entitled under this regulation may be taken in instalments, but– (a) [subject to the exception in paragraphs (10) and (11), ]7it 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. 13A.— Entitlement to additional annual leave (1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2). (2) The period of additional leave to which a worker is entitled under paragraph (1) is— ….. …… (e) in any leave year beginning on or after 1st April 2009, 1.6 weeks. (3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days. (4) A worker’s leave year begins for the purposes of this regulation on the same date as the worker’s leave year begins for the purposes of regulation 13. ……(6) Leave to which a worker is entitled under this regulation may be taken in instalments, but it may not be replaced by a payment in lieu except where— (a) the worker’s employment is terminated; …. 14.— Compensation related to entitlement to leave (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). (3) The payment due under paragraph (2) shall be– (a) such sum as may be provided for for the purposes of this regulation in a relevant agreement, or (b) where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula– (A × B) − C where– A is the period of leave to which the worker is entitled under [regulation 13] [ and regulation 13A]; B is the proportion of the worker’s leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date. (4) A relevant agreement may provide that, where the proportion of leave taken by the worker exceeds the proportion of the leave year which has expired, he shall compensate his employer, whether by a payment, by undertaking additional work or otherwise. 16.— Payment in respect of periods of leave (1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13[ and regulation 13A] at the rate of a week’s pay in respect of each week of leave. (2) Sections 221 to 224 of the 1996 Act shall apply for the purpose of determining the amount of a week’s pay for the purposes of this regulation, subject to the modifications set out in paragraph (3) [ and the exception in paragraph (3A)] . (3) The provisions referred to in paragraph (2) shall apply– (a) as if references to the employee were references to the worker; (b) as if references to the employee’s contract of employment were references to the worker’s contract; (c) as if the calculation date were the first day of the period of leave in question; [...] (d) as if the references to sections 227 and 228 did not apply [;] (e) subject to the exception in sub-paragraph (f)(ii), as if in sections 221(3), 222(3) and (4), 223(2) and 224(2) and (3) references to twelve were references to— (i) in the case of a worker who on the calculation date has been employed by their employer for less than 52 complete weeks, the number of complete weeks for which the worker has been employed, or (ii) in any other case, 52;[16]The Regulations were amended with effect from 1 January 2024, to enact in domestic legislation the position which had previously applied as a matter of retained (now assimilated) European law. Under retained European law a worker was permitted to carry over the four weeks leave provided by regulation 13 of the Regulations where: they have been unable to take such leave because they were on sick leave, or because they were exercising rights to statutory leave such as maternity leave, or because the employer had refused to provide paid holidays or because the employer failed to provide the employee with an effective opportunity to take annual leave.[17]The case of Max-Planck-Gesellschaft zue Forderung der Wissenschasften eV v Shimizu (C-864/16) provides guidance as to the approach to be adopted in determining whether an employee has had an effective opportunity to take annual leave. The employer should ensure that the employee is in a position to take annual leave by encouraging the employee, formally if necessary, to take the leave and informing him “accurately and in good time so as to ensure that leave is still capable for ensuring for the person concerned the rest and relaxation to which it is supposed to contribute, that, if he does not take it, it will be lost at the end of the reference period or authorised carry over period”. Shimizu makes clear that the burden of proof in relation to such matters was on the employer. Only if the employer is able to discharge that burden of proof and to demonstrate that the employee has received sufficient and timely encouragement and information to take annual leave during the relevant leave year and has, nonetheless, “deliberately and in full knowledge of the ensuing consequences ..refrained from taking the paid annual leave to which he was entitled” will the employee lose any entitlement to be compensated for that leave on termination. Conclusions Time limitsConclusions
[18]The claim was filed outside the statutory time limit.a. The claimant’s employment terminated on 13 March 2023. She should therefore have been paid for any accrued but untaken leave at the end of that month i.e. by 31 March 2023. However, because of the issues relating to the claimant’s submission of time sheets, the respondent was not able to finalise the payment of accrued holiday pay in the March payroll. The claimant therefore received her holiday pay in the June payroll.b. I considered that the latest date by which payment of all outstanding holiday pay should have been made (for the purpose of calculating time limits under regulation 30(2) of the Regulations) was therefore 30 June 2023, the date on which the June payroll was paid.c. In order to bring a timely complaint, the claimant would have had to start ACAS conciliation by 29 September 2023. However, ACAS conciliation was not commenced until 29 January 2024 and the claim was not filed until 23 March 2024.[19]A claim filed out of time cannot proceed unless the claimant can show both that it was not reasonably practicable for her to have brought her claim in time and that she brought it within such further period as was reasonable. I considered that it was reasonably practicable for the claimant to have brought a claim in time and that she had failed to bring her claim within such further period as was reasonable.a. The claimant’s sole explanation advanced by the claimant for her delay in bringing proceedings was that she had needed to be out of the UK for 4 months between April and August 2023 due to a family emergency.b. Even accepting that explanation, I considered that it would have been reasonably practicable for the claimant to have begun the process of bringing an ET claim when she returned to the country. She had returned to the country by September 2023 and, had she acted promptly and contacted ACAS then, she would have been able to start ACAS conciliation before the time limit expired on 29 September 2023.c. Instead she waited a further 4 months before doing so. She has provided no explanation for her delay in pursuing her claim between the end of September 2023 (when the time limit expired) and 29 January 2024 when she contacted ACAS.d. Nor did she act promptly to bring her claim even once the ACAS conciliation certificate was issued on 23 February 2024, waiting until 23 March 2024.[20]On that basis, I have no jurisdiction to hear the complaint and it must be dismissed.[21]Had I not dismissed the complaint on that basis, I would have concluded that the respondent had failed to show that it had done enough to provide the claimant with an effective opportunity to take her annual leave. Although its written policy stated that leave could be carried over in only limited circumstances and that there would be no pay in lieu of untaken leave in previous holiday years, I did not consider that a statement in policy was sufficient. There was no evidence of the respondent taking any steps to remind the claimant of the restrictions on carry over of leave before the end of the 2021/2022 leave year (though it would have been evident to the respondent that she had taken no leave during that year) or of it encouraging the claimant, even informally, to use her leave or run the risk of losing it. Approved by