Holidays

Having just come back from a few days holiday (unpaid), I was interested to see that the whole ‘Does holiday pay count as wages?’ issue is still rolling on. Ever since ‘Ainsworth’ (now on appeal to the ECJ as HM Revenue and Customs v Stringer & Others) the question of whether holiday pay can be claimed as a deduction from wages has been up in the air.

This does not matter where it is a one off but where there have been a series of non-payments a worker cannot join the dots as he can under the deduction from wages provisions. This means that at present people are having to make repeated claims for unpaid holiday pay due to the time limit running from each holiday taken but not paid.

This arose out of the Court of Appeal's decision in Ainsworth, where they decided that non-payment of sums in respect of holiday pay can only be claimed under the Working Time Regulations 1998 (WTR) and not as deductions from wages under the Employment Rights Act 1996 (ERA).

There is as yet no solution to this issue although a worker can now at least protect his position if he has missed the time limit under the WTR pending the outcome of the appeal (see Berta v Hummus Brothers Limited).

The practical way forward for the Claimant is to make a claim under both the WTR and the ERA. The Claimant’s ERA claim will then be stayed to the extent that the WTR claim is time barred.

HM Revenue and Customs v Stringer & Others C-520/06. The Advocate General’s Opinion is at: http://www.bailii.org/eu/cases/EUECJ/2008/C52006_O.html

Commissioners of Inland Revenue v Ainsworth & Others [2005] EWCA 441:http://www.bailii.org/ew/cases/EWCA/Civ/2005/441.html

Berta v Hummus Brothers Limited UKEAT/0184/08:
http://www.employmentappeals.gov.uk/Public/Upload/08_0184fhLBRN.doc

Peter D