Employment Judge PorterMr D Patel (instructed by counsel) for claimantMr M Mensah (instructed by counsel) for respondentDate 30 October 2024
JUDGMENT
[1]The claim was presented in time; and[2]The respondent has refused to permit the claimant to exercise his right to basic annual leave of 44.7 hours.
REASONS
[1]Reasons are provided pursuant to the oral request of the claimant at the hearing.
Issues to be determined
[2]At the outset it was confirmed that the issues were:a. Whether the claim was presented in time;b. Whether the respondent has refused to allow the claimant to exercise his right to annual leave under regulation 13 Working Time Regulations Submissions[3]Counsel for the claimant relied upon written and oral submissions which the tribunal has considered with care but does not repeat here. In oral submissions, in essence, it was asserted that:a. The respondent repeatedly refused the claimant’s requests to take the annual leave accrued during his sickness absence;b. The argument of “double recovery” reveals a misunderstanding of the directive;c. Just because the claimant was paid for the annual leave does not mean that he took it;d. The claimant is seeking the declaration of his right to take annual leave, not the right to be paid annual leave;e. The problem of double recovery can be practically avoided. Two options are addressed in the skeleton argument.[4]Counsel for the respondent relied upon written and oral submissions which the tribunal has considered with care but does not repeat here. In oral submissions, in essence, it was asserted that:-a. The claimant was not prevented from taking annual leave;b. During his sickness absence he was paid his full pay including shift allowance;c. If he is allowed to take the holiday accrued during his sickness absence then he would have to expect his salary to change otherwise there would be double recovery. He was paid full pay for his sickness absence; he cannot expect to be paid again.
Evidence
[5]The claimant gave evidence.[6]The respondent relied upon the evidence of Mr Martin Gledhill, Operations Manager.[7]The witnesses provided their evidence from written witness statements. They were subject to cross-examination, questioning by the tribunal and, where appropriate, re-examination.[8]An agreed bundle of documents was presented. References to page numbers in these Reasons are references to the page numbers in the agreed Bundle.
Facts
[9]Having considered all the evidence the tribunal has made the following findings of fact. Where a conflict of evidence arose the tribunal has resolved the same, on the balance of probabilities, in accordance with the following findings.[10]The claimant has been employed by the respondent since 1 October 2017 as a Shift Process Operator. He works as part of a 5-man shift team.[11]The offer letter at pages 57 – 58 of the documents bundle and the Terms and Conditions of Employment document at 59 – 71 set out the terms and conditions of employment.[12]Because the claimant has been employed by the respondent for more than 5 years, he is entitled to 30 days holiday plus 8 statutory holidays– 38 days in total per year. The Respondent bases annual leave entitlement on hours because of the shift system. The claimant is entitled to 285 hours per holiday year.[13]The claimant works on a shift pattern consisting of two- day shifts, then two-night shifts (both of 12 hours), followed by six days off (“non-working days”). The respondent builds 198 hours of the claimant’s annual leave into the shift pattern throughout the year. The claimant is then paid for those holidays each month as part of his normal salary.[14]The respondent does not allocate specific days as annual leave in between shifts. The claimant is entitled to take any of those days off as annual leave, he is not required to identify the dates which he treats as non-working days or annual leave.[15]In addition to those built in holiday hours the claimant has 87 hours’ worth of annual leave which he can take at a time of his choosing throughout the year (“Personal Leave”). He is required to give notice of the days upon which he intends to take Personal Leave.[16]At the relevant time the claimant was paid the same basic salary every month, which included all entitlement to holiday pay.[17]The claimant was absent from work on sick leave between 14 December 2022 until his return on 23 May 2023. During his sickness absence, the claimant was paid full pay as per the terms of his contract of employment (see page 62 of the bundle). The respondent also included the claimant’s shift allowance of £11,097 in his sick pay calculation. The claimant does not dispute this and accepts that he was paid correctly during his[18]During his sickness absence the claimant was in hospital for 4 weeks and was recuperating at home for the remaining time he was absent. He did not take annual leave during the time he was off sick. He did not make any request for annual leave. He did not have any pre-booked Personal Leave during that time.[19]Shortly after his return, on or around 5 June 2023, the claimant via his Trade Union (Unite) queried his holiday entitlement, asserting that he was entitled to be credited with the annual leave which had accrued during his sickness absence but was not taken. His request was refused by Mr Gledhill by email dated 7 June 2023 (page 74) which stated: If you had holidays booked during your sickness absence those would have been cancelled and you would have been re- credited with those hours.[20]In April 2024 the claimant made a further request to be credited with the annual leave which had accrued during his sickness absence. He had a meeting with Tom Ford, General Manager, who advised the claimant on 1 May 2024 that the request was refused, the respondent’s stance remained the same.[21]On 1 May 2024 the claimant raised a formal grievance, again requesting that he be credited with the annual leave accrued but not taken during his sickness absence.[22]The grievance was rejected on 4 June 2024 (page 98).[23]The claimant started the Early conciliation process with ACAS on 1 May 2024. The conciliation period ended on 21 May 2024. The claimant presented the claim on 11 June 2024.
The Law
[24]Regulation 13 of the Working Time Regulations states: Entitlement to annual leave (A1) This regulation applies to—(a) a worker in respect of any leave years beginning before 1st April 2024, and(b) a worker to who regulation 15B does not apply in respect of any leave years beginning on or after 1st April 2024. (1) Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year. …. (9) Leave to which a worker is entitled under this regulation may be taken in instalments, but– (a) subject to the exceptions in paragraphs (14), (15) and (17) 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. (14) Where, as a result of taking a period of statutory leave in any leave year, a worker is unable to take some or all of the annual leave to which the worker is entitled in that leave year under this regulation, the worker is entitled to carry forward such untaken leave into the following leave year. (15) Where, as a result of taking a period of sick leave in any leave year, a worker is unable to take some or all of the annual leave to which the worker is entitled in that leave year under this regulation, the worker is entitled to carry forward such untaken leave into the following leave year provided it is taken by the end of the period of 18 months from the end of the leave year in which the entitlement originally arose. (16) Paragraph (17) applies where, in any leave year, an employer fails to— (a) recognise a worker's right to annual leave under this regulation or to payment for that leave in accordance with regulation16; (b) give the worker a reasonable opportunity to take the leave to which the worker is entitled under this regulation or encourage them to do so; or(c) inform the worker that any leave not taken by the end of the leave year, which cannot be carried forward, will be lost. (17) Where this paragraph applies and subject to paragraph (18), the worker is entitled to carry forward any leave to which the worker is entitled under this regulation which is untaken in that leave year or has been taken but not paid in accordance with regulation 16 (18) Annual leave that has been carried forward pursuant to paragraph (17) cannot be carried forward beyond the end of the first full leave year in which paragraph (17) does not apply.[25]Workers absent on long-term sick leave are entitled to four weeks’ paid annual leave under the Working Time Directive and must be paid for it at their normal rate of remuneration. They are also entitled to a payment in lieu of unused leave, calculated at their normal rate of remuneration, if their employment is terminated — Stringer and ors v Revenue and Customs Commissioners; Schultz-Hoff v Deutsche Rentenversicherung Bund 2009 ICR 932, ECJ. While individual Member States can choose whether to allow workers to take annual leave during sickness absence, if they decide not to, then workers must be permitted to take such leave at some other time.[26]A worker who falls ill before or during a period of planned annual leave is entitled to have that period treated as sick leave rather than holiday. In such a case, the employer must allow the affected period of annual leave to be reallocated at a convenient time, even if this means that some or all of the rescheduled leave is carried over into the next leave year — Pereda v Madrid Movilidad SA 2009 IRLR 959, ECJ; Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and ors 2012 ICR 1211, ECJ[27]A worker on long-term sick leave who has not had an opportunity to take annual leave is entitled to carry over the unused leave, regardless of the fact that he or she made no request either to take the leave or to carry it over before the expiry of the leave year in which the entitlement arose. NHS Leeds v Larner 2012 ICR 1389.[28]Regulation 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… regulations ..13,13A… (b) has failed to pay him the whole or any part of any amount due to him under [regulation 14(2), 15E, 16(1) or 16A](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 or, as the case may be, six months.(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.[29]In Scottish Ambulance Service v Truslove and anor EATS 0028/11, a claim under regulation 30 about the failure to provide daily rest periods, the EAT specifically rejected the employer’s argument that time for the purpose of regulation 30(2)started to run on the date that the claimants’ grievance about rest periods was rejected. It was held that time began to run on the date the claimant should have enjoyed the rest period to which he or she has a continuing right under the Regulations. The EAT did not accept the argument that time began to run on the date of the first of the missed rest periods. It was held that where a worker claims that an employer has not provided him or her with the rest periods to which he or she is entitled under the Regulations, a new three-month time limit starts to run from each occasion on which rest is not afforded.[30]The tribunal has considered and where appropriate applied the authorities referred to in the submissions. Determination of the Issues[31]This includes, where appropriate, any additional findings of fact not expressly contained within the findings above but made in the same manner after considering all the evidence. Out of time point.[32]The tribunal agrees with counsel for the respondent that this is a jurisdictional issue which must be considered by the tribunal whether or not it has been pleaded by the respondent. This has not been challenged by the claimant.[33]The tribunal agrees with counsel for the claimant’s assertion that the time limit was refreshed each and every time the respondent refused the claimant's request to be credited with the annual leave which he had accrued during the course of his sickness absence. This is consistent with the decision in Scottish Ambulance Service v Truslove and anor EATS 0028/11.[34]Time for presentation of the claim runs from the date of the outcome of the grievance, when the respondent again refused the claimant’s request. Time runs from 4 June 2024. The claim was presented on 11 June 2024, in time.[35]The tribunal has jurisdiction to hear this claim. Request for a declaration that the Respondent has refused to permit the claimant to exercise a right he has under reg 13.[36]The right to annual leave is clear under the Working Time Regulations. The tribunal agrees with counsel for the claimant that the right to annual leave and the right to be paid for annual leave taken are two separate rights. It is generally acknowledged that the right to time off work is important for the health and well-being of the workforce. The worker is entitled to take the annual leave and cannot, for example, be forced to take pay in lieu of taking time off.[37]The tribunal agrees with counsel for the claimant that the decision in Pereda (see above) is relevant to this claim and the interpretation of s13 WTR. There it was confirmed that “a worker who is on sick leave during a period of previously scheduled annual leave has the right, on his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave.” This was the recognised position in case law, which has now been adopted in the amended Working Time regulations. The tribunal refers to regulation 13(15) as cited above. A key point in the Pereda judgment is the use of the phrase “in order that he (the worker) may actually use” his annual leave. In the interpretation of the WTR and Working time Directive the courts have adopted the purposive approach.[38]In this case, while the claimant was on sick leave between December 2022 and April 2023 there fell periods of previously scheduled annual leave. This was because under the terms of the agreement between the parties a certain percentage of the entitlement to annual leave is built into the shift pattern. This is Mr Gledhill”s evidence as indicated at paragraph 13 above. Part of the claimant's non-working days are regarded as being annual leave. The exact dates are not specifically identified by either the claimant or the respondent. The claimant is not required to specify the exact dates of annual leave which he takes in those periods. Nevertheless both parties under the terms of the agreement accept that this “built in” system satisfies part of the claimant’s entitlement to annual leave. The days of annual leave “built in“ to the system are days of “previously scheduled” annual leave, as described in Perera.[39]While the claimant was off work sick he was paid his full contractual pay as sick pay. That included the hours of annual leave built into the shift pattern, built into his monthly pay. But the claimant was unable to take that leave. Following Perera he had the right, on his request and in order that he may actually use his annual leave, to take that leave during a period which did not coincide with the period of sick leave. That right enables the claimant to carry forward the accrued leave to the next holiday year. The respondent denied the claimant that right. On his return from sick leave the respondent refused to credit him with any hours of annual leave which had accrued during his sickness absence.[40]The question is whether a distinction should be drawn between:a. the hours of annual leave built into the shift system during the period of absence ; andb. the hours of Personal annual leave accrued during that period of[41]The claimant has 87 hours worth of annual leave which he can take at a time of his choosing. This is referred to as his Personal leave. The claimant had not booked any Personal leave in the period of his[42]Having considered the authorities the tribunal agrees with counsel for the claimant that the same principle applies for both the annual leave incorporated into the shift system and the Personal leave. The claimant was unable during the period of his sickness absence, to take any of his Personal leave. The claimant was entitled to that Personal leave whether or not he had booked it for the period of sickness absence. That is consistent with the amended WTR 13(15).[43]The respondent denied the claimant that right. The respondent refused to credit the claimant with any annual leave accrued during his sickness[44]The respondent denied that right citing that the claimant would benefit from double recovery because he had been paid for that accrued annual leave.[45]The tribunal does not quite understand the basis of this argument, bearing in mind the respondent’s clearly stated position that if a worker had booked Personal leave and was off sick and unable to take that leave, then the respondent would credit back that Personal leave. There is no suggestion that the respondent deducts pay from the worker when he eventually takes that leave, outside the period of sickness. On that reasoning, if the claimant had booked Personal leave which fell during his sickness absence, then:a. he would have been paid full sick pay during sickness absence; andb. on his return he could have taken his Personal leave with no deduction from his wages.[46]Mr Gledhill was unable to provide an explanation as to why the respondent would credit back Personal leave which had been booked during a period of absence. The explanation for refusing to credit back the claimant’s leave accrued in sickness is the double recovery argument. However, there appears to be an element of what the respondent calls double recovery in its treatment of Personal leave booked during sickness absence.[47]In any event, the respondent's assertion of double recovery is not a valid defence to this claim.[48]The respondent may consider, as expressed by Mr Gledhill, that what the claimant seeks is not fair: he is expecting to take his accrued annual leave, for which he was paid, at a later time when he will continue to be paid his normal salary.[49]That may not be fair. However, fairness is not the issue. The issue is what are the claimant’s rights to annual leave under the Working Time Regulations[50]The tribunal agrees with the claimant and finds that he is entitled to be credited with the annual leave which he accrued and was unable to take during his sickness absence.[51]The respondent has not challenged the claimant’s calculations and number of hours to be credited. The tribunal accepts the claimant’s uncontested calculation of 44.7 hours.[52]The tribunal declares that the respondent has refused to permit the claimant to exercise his right to basic annual leave of 44.7 hours.[53]The claimant seeks only a declaration on the refusal to permit the claimant to exercise his right to basic annual leave. He has not made application for compensation. He has not made application for a declaration as to his right to paid leave. Counsel for the claimant has made suggestions as to how the respondent’s complaint of double recovery can be resolved. However, the tribunal has not been invited to make any determination on that point.