is a worker entitled to ‘carry-over’ payment where they have taken unpaid annual leave?
No held the Employment Appeal Tribunal in Smith v Pimlico Plumbers Ltd.
Mr Smith worked for Pimlico Plumbers as a plumbing and heating engineer. He made several claims in the employment tribunal (ET) including for unpaid holiday pay accrued throughout the duration of his employment. Mr Smith took regular holiday at Christmas, during the summer holiday and on bank holidays but he was never paid for this.
The Supreme Court determined that Mr Smith was a ‘worker’ for the purposes of the Working Time Regulations and the Employment Rights Act 1996. A worker is entitled to certain payments including holiday pay. His claim for holiday pay was referred back to the ET. The ET dismissed Mr Smith’s claim on grounds that it was out of time, stating that his claims should have been brought within three months of the most recent refusal or deduction from wages under Regulation 30(2) of the Working Time Regulations and section 23(3) of the Employment Rights Act 1996 respectively. The ET considered that the principle set down in King v Sash Window did not apply on these facts. The principle in King v Sash Window permits a worker to ‘carry over’ a right to claim payment for unpaid leave, which would become payable at the end of their employment. Mr Smith appealed this decision.
EAT agreed with the ET, dismissing Mr Smith’s appeal. The EAT considered the principle set in King v Sash Windows and determined that it does not apply to those workers who took leave, even if it was unpaid.
You can read the full judgment here.
This blog was written by Joanne Sinclair, Trainee, didlaw.