Anderson and others v Resource (UK) Ltd IT/1553/11 and other cases
Date added: 18 July 2012
statutory annual leave | bank and public holidays | double pay
In this case, a security company told workers that their 28-day entitlement to annual leave would be reduced because they were paid double for working bank or public holidays. The Northern Ireland industrial tribunal found this to be a breach of the workers' statutory right to a minimum of 28 days' annual leave.
Workers have the right to a minimum of 28 days' paid holiday each year. Employers that limit their workers' holiday entitlement to this statutory minimum but require their workers to work on bank or public holidays must give their workers days off in lieu so that their total paid leave is 28 days per year.
The right to 28 days' paid holiday each year is a fundamental right. Employers that try to circumvent this right by, for example, trying to buy out this entitlement instead of giving days off in lieu, will be in breach of the working time legislation, irrespective of whether or not a worker has given notice of his or her wish to take these specific days off.
The claimants, Mr Anderson, Mr Whitley and Mr Campbell, were employed by a security company, Resource (UK) Ltd, as security officers. The claimants sometimes had to work on bank or public holidays.
When they enquired about their holiday entitlement, the claimants were told by the company that they would not be getting their full 28-day annual holiday entitlement as they had received double pay for working specific bank or public holidays. They were told that they would therefore lose a corresponding amount of holiday from their 28-day holiday entitlement.
While Mr Anderson and Mr Whitley did not request any specific days to cover the days the company said were going to be deducted from their holiday entitlement, Mr Campbell did make such a request. The tribunal found that Mr Anderson and Mr Whitley did not request these specific days off because the company had informed them that their holiday entitlement was being reduced.
Mr Anderson had one day deducted from his holiday entitlement. Mr Whitley and Mr Campbell each had two days deducted from their holiday entitlement.
The claimants argued that the company was in breach of its obligations under reg.13 of the Working Time Regulations (Northern Ireland) 1998 (SR 1998/386) because the claimants were told that they were not allowed to have the full extent of their annual holiday during the relevant year. Regulations 13 and 13A give workers the right to a minimum of 5.6 weeks' holiday in each holiday year, which translates to 28 days for a worker working a five-day week.
The company contended that, because Mr Anderson and Mr Whitley did not give notice of their intention to take specific days off under reg.15 of the Working Time Regulations (Northern Ireland) 1998, they lost their right to those days off. Regulation 15 provides that a worker may take his or her statutory holiday by giving the required notice to his or her employer.
The claimants contended that regs.13 and 13A of the Working Time Regulations (Northern Ireland) 1998 do not require notice to be given under reg.15 before the entitlement to 28 days' annual holiday was awarded. The claimants said that, in any case, because they had already been told by the company that they would not be given their full 28-day holiday entitlement, they were not at the point of trying to exercise their right to paid leave under reg.16 of the Working Time Regulations (Northern Ireland) 1998.
The claimants relied on reg.30(1)(a)(i) of the Working Time Regulations (Northern Ireland) 1998, which provides that a worker may present a complaint to a tribunal if the worker's employer has refused to permit him or her to exercise any right he or she has under regs.13 or 13A.
The tribunal agreed with the claimants that it is not "a requirement for the claimants to give notice under regulation 15 [of the Working Time Regulations (Northern Ireland) 1998] for them to preserve their entitlement to annual leave".
The tribunal accepted the claimants' argument that the cases cited during the hearing, which relate to long-term sickness absence and paid holidays, are distinguishable from the claimants' cases because they relate to reg.16 of the Working Time Regulations (Northern Ireland) 1998, rather than to an application in respect of the basic right set out in reg.13. The workers were not in a position to assert their right to take paid annual holiday under regs.15 and 16 because the company had denied them the opportunity to take the holiday in the first place by informing them that their holiday would be reduced.
The tribunal agreed with comments in Kigass Aero Components Ltd v Brown  IRLR 312 EAT that:
"...workers should have a remedy against their employer where the employer pre-emptively decides not to comply with its statutory obligations. It cannot be the case that an employee has to surmount a further hurdle by giving notice to take specific days off when it has already been made clear that the entitlement will not be given."
The tribunal decided that the company had breached the claimants' right to statutory annual holiday. It concluded that each claimant was entitled to his holiday entitlement under reg.13 of the Working Time Regulations (Northern Ireland) 1998 without having to give notice under reg.15.
The tribunal went on to observe that reg.30(4)(a) of the Working Time Regulations (Northern Ireland) 1998 requires tribunals to look at the employer's failure in refusing to permit the worker to exercise his or her right when assessing compensation. It was the tribunal's view that this suggested some form of penalty. In light of the fact that the tribunal found that the company had known that its reduction of the workers' holiday entitlement was in breach of the Working Time Regulations (Northern Ireland) 1998, the tribunal said that "it would not be just and equitable for the employer simply to have to pay a day's pay for each day lost: there must be an element of penalty to reflect the seriousness of such a breach of a fundamental right". The tribunal therefore awarded each claimant three days' pay in respect of each day's leave that was lost.