Mr L A Donaldson v The Nail and Beauty Zone Ltd: 4106810/2024
JUDGMENT
The Employment Tribunal finds that the respondent company unlawfully deducted wages from the claimant and that the respondent shall pay the claimant Seven Hundred and Eight pounds and Fifty-Six pence (£708.56) being accrued holiday pay due at the date of termination of his employment.REASONS
[1]The claimant was a student in Aberdeen. He obtained part-time work with the respondent company as a Spa/Massage Therapist from 2 October 2023 until E.T. Z4 (WR) termination of his employment on 14 June 2024. He claims accrued but unpaid wages namely holiday pay that he had accrued during this period.[2]The claim was opposed by the respondent company. They disagreed with the claimant’s calculations. They suggested that the claimant was not genuinely ill when he was signed off sick. They pointed to the company Holiday Policy that holidays must be taken in the year they accrue. This clause said that there was only a discretionary right to carry over a maximum of 5 days upon request and that no request had been received. Evidence[3]Rather unusually the claimant did not attend the hearing. His mother, Mrs Lynsey Donaldson appeared on his behalf. At the outset I pointed out that matters might be raised in the course of the hearing that she might not be able to respond to. However, she was confident that she was able to answer questions on behalf of her son because of her close involvement in the surrounding circumstances and knowledge of his illness. The Tribunal also had access to documents lodged by parties.[4]I suggested that the respondent lead evidence first and set out their position before Mrs Donaldson. Accordingly, Mr Lumsden helpfully gave evidence first. He also indicated that he wanted to call Claire Rogan, the claimant’s Manager to give evidence. However, it transpired that her evidence was essentially that the claimant had not asked to carry forward leave and this was accepted by Mrs Donaldson.[5]Mr Lumsden explained that he was the Director of the business which had a number of premises throughout the UK including one at Union Square, Aberdeen where the claimant worked. The claimant worked there as a Massage Therapist whilst attending University in Aberdeen. He had no difficulties with the claimant’s work. He apparently was well thought of.[6]The claimant was given a contract of employment which he signed on 21 September 2023. The contract deals with holidays. The clause dealing with holidays says this: ‘‘Your annual holiday entitlement from the year from 02/10/2023 to 31/03/2024 is 14.5 days including bank holidays. The holiday year runs from 1 April to 31 March each year. Holiday allowance accrues on a 1/12 basis for each month worked. Thereafter your holiday entitlement will be 29 days per year including bank holidays. You may only take holidays on dates that you agree in advance with Directors of the Company and use holiday entitlement may only be carried out to the following holiday year at the discretion of the Directors of the Company.”[7]Mr Lumsden then took the Tribunal through the history of the claimant’s employment and sick leave.[8]The claimant took a non-epileptic fit at work on 2 January 2024. The fit note had been submitted (C9) indicating that the cause was a non-epileptic seizure certifying him unfit for work. Mr Lumsden’s position was that while other fit notes had been submitted (C4-10) not all of the period of absence in question had been certificated.[9]He accepted that there were the following certificates covering these periods: 02/01/2024 to 12/01/2024, 23/01/2024 to 04/02/2024, 20/02/2024 to 05/03/2024, 05/03/2024 to 20/03/2024, 20/03/2024 to 04/04/2024, 04/04/2024 to 19/05/2024, and finally, 19/05/2024 to 14/06/2024.[10]His position was that final medical certificate caused the company to bring the claimant’s employment to an end. Mr Lumsden took the view that the claimant could have asked for holidays during these periods of absence and effectively taken them and he queried whether the claimant was really ill as he continued to remain at University. In cross-examination the claimant’s mother referred Mr Lumsden to document C25 which is a copy of a rota of January 2024. It was evident that the claimant had taken periods of unpaid leave between 15 and 20 January but only 2 days paid leave. The company had paid accrued leave after contact with ACAS for the new leave year that had started. The dispute related to the old leave year and accrued holiday leave which he believed had been lost.[11]Mrs Donaldson gave evidence. The details of the claimant’s contract, hours of work (8) and hourly rate (£10.42) were not disputed. She had been shocked when she had been telephoned by the claimant’s Manager on 2 January that her son had taken a non-epileptic seizure. Staff had found him unresponsive. It wasn’t immediately apparent what the cause of the seizure was and he had been kept in hospital for tests and observations. She then took the Tribunal through the history of his condition from this point until early summer. She explained that although there was no clear diagnosis within the next couple of months it became apparent that his condition seemed to be related to stress which would bring on episodes of seizures. There was no forewarning of these.[12]She gave a history of the various difficulties her son had experienced including the various tests and investigations that had occurred during this period. In relation to his attendance at University she explained that he was not required to attend lectures or tutorials that year as he was writing his Thesis. This had allowed him to work. In addition, because of his health difficulties he had to ask for an extension of a year to lodge his Thesis. She produced evidence of this. At the point he began to take seizures he was working with the respondent and not attending lectures and working in his spare time on that Thesis. She explained that she had a close involvement with him following the seizure as did other members of the family. He would have submitted fit notes for any periods that were missed but was not asked to do so. He had not been paid SSP. He was unwell from January until June and unable to work. She explained that during this period he returned home to allow her to monitor him and to be there in case he had any unexpected seizures. In relation to Fit Notes if they had been requested they could have been supplied.[13]It was put to her by Mr Lumsden that her son could have taken holidays but she explained that the practical effect of his condition was that he could not take a “normal holiday” because he could not be alone and unsupervised. This was made complex as the investigations into the condition continued for some months. He was not in a position because of this health condition to take holidays prior to the end of the holiday year. His health had been most problematical during the period of January to March. He was on long term sick. Her understanding was that he could not be forced to take leave. She explained that her son had been given notice of termination of his employment on 14 May 2024 with the termination date of 14 June 2024. He was requested to take outstanding holiday during this notice period but was still signed off work.[14]In discussion it was accepted by both sides that the holiday pay at issue was 8½ days (the claimant had rounded up his claim in his ET1) and that if the Tribunal ordered payment of this sum it would be at the rate of £10.42. Discussion and Decision[15]There was no real dispute as to the facts here. Mrs Donaldson was a patently honest witness who had a detailed knowledge of events impacting her son after the seizure he took in January. She was both credible and reliable. Mr Lumsden was also a credible and reliable witness who was able to narrate events from the company’s perspective but who was unaware at first hand of how this condition had affected the claimant. He was credible and reliable in his evidence but his knowledge of the claimant’s medical condition was limited.[16]The company despite its apparent misgivings had not asked the claimant to attend Occupational Health for an assessment nor had they challenged the Fit Notes or asked for further information about his condition. They had not sought to persuade him to take leave. They also did not seek certification of the two periods not covered by the Fit Notes or take any steps to bring the contract to an end at an earlier point.[17]I had no difficulty in accepting that the claimant had been unable to work though illness during the period from his seizure in January (he had later taken others) until termination of his employment. This position is amply corroborated by the extension sought from the University to submit the Thesis and the Fit Notes supplied. The company was not in a position to force the claimant to take holidays during his period of ill health nor did they seek to persuade him to do so voluntarily. My suspicions are that the matter of accruing holidays was likely to have been somewhat forgotten about. In this case it would have been very unwise for the claimant to have taken a traditional holiday given the type of condition he had developed, the uncertain diagnosis and the lack of clear and effective treatment.[18]The right to paid annual leave is to be found in the Working Time Regulations 1998 section 13. These were Regulations putting into effect a European Directive of the same name. The purpose of the directive was to protect workers’ health and safety.[19]As a consequence of the ECJ ruling in Stringer and others v HM Revenue and Customs sub nom Commissioners of Inland Revenue v Ainsworth and others; Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] IRLR 214 ECJ, employees who are absent on sick leave continue to accrue entitlement to four weeks' paid statutory holiday under the Working Time Directive (2003/88/EC) and reg.13 of the Working Time Regulations 1998 (SI 1998/1833). This is the case regardless of the length of the sickness absence.[20]The Employment Appeal Tribunal case of NHS Leeds v Larner (2012 EWCA Civ 1034) was to the effect that the right to paid leave was not extinguished at the end of the reference period (i.e holiday year), where the worker had been on sick leave for the whole or part of the leave year so as not to actually have had the opportunity to exercise the right to paid leave.[21]An employee does not have to demonstrate that they are unable to work. It is their choice as to whether or not to take leave while absent through sickness (Plumb v Duncan Print Group UKEAT/0071/15/DQ).[22]As I explained to Mrs Donaldson the Tribunal has no authority (jurisdiction) to award unpaid SSP. She accepted that position. However, it is clear that the claimant accrued and was entitled to holiday pay. The respondent was not entitled to prevent the claimant taking over accrued leave into the new holiday year given his illness and the accepted period is 8.5 days. The claimant is entitled to payment of £708.56 (8.5 x 8 x £10.42). If this sum is paid net of tax then that shall extinguish the obligation to pay this sum provided that the claimant is given a payslip vouching the deductions.