Case law: Worker may carry holiday forward if prevented for any reason from taking it
Tuesday 6th January 2015
Workers prevented from taking holiday for a reason beyond their control may be able to carry forward their holiday, even if they have not specifically requested to, and even if the reason is not the worker’s sickness.
Workers prevented from taking holiday because they were sick have been permitted by law to carry it forward and take it at a later date, without the worker having to specifically request permission to do so. However, it was thought this did not apply if they were prevented from taking holiday for any other reason.
In a recent case, a commission-only salesman worked for his employer for around 13 years. He took holiday each year but did not receive holiday pay. He was dismissed and claimed unpaid holiday pay. He argued that he would have taken more time off but:
He had to give notice before taking holiday, to ensure there were enough sales people working at any one time
He was not paid commission if he did not work
He did not know he was entitled to holiday pay
There was no suggestion he had ever been prevented from taking holiday because of sickness.
The Employment Appeal Tribunal (EAT) said the key question was whether the salesman had been prevented from taking paid leave because of circumstances beyond his control. Significantly, it seemed to accept implicitly that, if that was the case, he could carry forward his entitlement to paid holiday even though he had been prevented from doing so by a reason other than sickness.
If that is correct, it seems workers can now carry forward entitlement to holiday if they have been unable or unwilling to take their holiday for any ‘reason beyond their control’, and not just if prevented from doing so by sickness.
In this case the EAT said the Employment Tribunal should have assessed what would have happened had the worker asked to take holiday. If he was prevented from exercising his right to holiday he could carry forward his entitlement. If he was merely choosing not to take holiday of his own volition, he could not.
The EAT also ruled that the correct claim was for compensation for refusal to allow the worker the right to take holiday, not for unlawful deduction of wages because of the employer’s failure to pay holiday pay.
Employers should ensure there are no reasons beyond their workers’ control – whether sickness or any other reason - which prevent them from taking holiday, or risk workers being able to carry forward holiday without having to specifically request that they can.
Case ref: The Sash Window Workshop Ltd & Anor v King  UKEAT 0057_14_0112
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