Historic holiday pay claims can be brought even where there is a correct payment or a gap of three months or more between a series of underpayments.
Working time and leave
When calculating pay for accrued but untaken statutory holiday at the end of employment under the Working Time Regulations, an employment contract (or other agreement) cannot stipulate a formula for calculating that holiday pay which would result in a worker being paid less than the usual amount they would have been paid for working.
Entitlement to holiday pay under the Working Time Regulations 1998 does not need to be pro-rated for part-year workers
A worker who took unpaid holiday because his employer refused to pay for it accumulated the right to paid annual leave for which he was entitled to compensation on termination.
Where a worker must be contactable and attend work in a specified response time, he or she will only be working for the purposes of the Working Time Directive if such constraints ‘objectively and very significantly’ affect the worker’s ability to devote that time to his or her own interests.
A worker, who had been denied a rest break and who was subsequently threatened with dismissal following his refusal to return to work, suffered an unlawful detriment.
Voluntary overtime should be factored into the calculation of holiday as long as it is it is sufficiently regular and settled so that payments for overtime amount to ‘normal’ remuneration says the Court of Appeal.
European law obliges employers to establish a system enabling the duration of daily working to be measured.
Although a breach of the Working Time Regulations cannot lead to an injury to feelings award, compensation can reflect personal injury suffered as a consequence of the breach.
Where a worker is entitled, under the Working Time Regulations, to ‘compensatory rest’ instead of a 20-minute uninterrupted rest break, the rest need not, in every case, consist of an uninterrupted 20 minutes, even if it would, in principle, be possible to provide such a break.
Whilst periods of short-time working may reduce the minimum period of statutory leave to less than four weeks, they cannot reduce the amount off pay due when leave is taken – and overtime doesn’t necessarily have to be included in the calculation of holiday pay.
Workers cannot be deprived of paid statutory holiday entitlement on the termination of employment or at the end of a particular reference period/authorised carry-over period unless the employer has ensured ‘specifically and transparently’ that the worker is given the opportunity to take the leave.
The nature of the restrictions that are placed on a worker will determine whether ‘on-call’ time qualifies as ‘working time’.
Injury to feelings compensation can be awarded in detriment claims under the Working Time Regulations.
The means of enforcing rights to paid holiday in the Working Time Regulations is incompatible with EU law according to the European Court of Justice. Employers must give workers the facility to take paid holiday, workers do not have to take holiday to be able to claim payment for it, refusal to pay is considered as ‘prevention’ and workers can claim unpaid holiday for the whole of their employment or up to the date when paid holiday was offered, whichever is the earliest.
In the first binding authority to consider the issue, the EAT has held that entirely voluntary overtime counts as ‘normal remuneration’ for the purposes of calculating statutory holiday pay under reg. 13 of the Working Time Regulations (i.e. the 20 days’ leave provided for by the Working Time Directive).
Fulton v Bear Scotland Ltd No. 2
The three-month rule which means that workers will lose the right to claim back pay for underpaid holidays where there has been three months or more between underpayments has been upheld on appeal.
Grange v Abellio London Ltd
The EAT confirms that it is the employer’s obligation to ensure that workers take statutory rest breaks - it is not necessary for the worker to ask for a break before the Working Time Regulations are breached.
British Gas Trading Ltd v Lock
In the long-running litigation relating to what should and should not be paid to a worker when they are on holiday, British Gas went to the Court of Appeal to argue that this should not include results-based commission and that English law, as currently drafted, could not be read as complying with EU law and therefore a change of law is required. This would have the practical effect of there being no ability to bring back claims until the new law is imposed. It lost on both counts.