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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Downey v O'Hare & Ors (Holiday Pay) [2004] NIIT 1782_03 (16 January 2004)
URL: http://www.bailii.org/nie/cases/NIIT/2004/4.html
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- The applicant lodged an originating application on 16 June 2003 complaining that throughout his employment with the respondent he had not been paid holiday pay.
- He accepted that since lodging proceedings he has been paid six weeks holiday pay. The respondent provided a breakdown of the payment, namely four weeks holiday pay for the year 2002 – 2003 and two weeks holiday pay, to represent half of the applicant's total entitlement for the year 2003 – 2004. The holiday year runs from January to January.
- The tribunal explained to the applicant that it could only consider a complaint if it has been presented before the end of the period of three months beginning with the date on which the payment should have been made. Therefore, unless the applicant could show that it was not "reasonably practicable" for him to have brought a claim in relation to holiday pay for earlier years of employment, the tribunal could not compensate him.
- The applicant told the tribunal that he had always been paid holiday pay by previous employers. Also, he had read in the newspapers about the right to holiday pay, when the minimum wage went up each year. Despite this, he did not seek advice, or take any steps to make a claim for holiday pay under the Working Time Regulations, until December 2002 when he went to the Citizens Advice Bureau.
- The applicant stated that he had thought because he was a "low paid" worker he had no employment rights.
- It is clear from the case of Dedman v British Building and Engineering Appliances Ltd [1974] (All ER) that the fact that an employee did not know about his rights, or the time limits for pursuing those rights does not necessarily mean that it was not practicable for him to have presented his complaint earlier.
- In this case, it is apparent that the applicant, having read about the right to holiday pay in the newspapers, and having been paid holiday pay by previous employees, did not take any advice on the matter until December 2002. We conclude that the applicant was "put on enquiry as to his rights", and should have sought advice on his situation earlier. We therefore conclude that it was reasonably practicable for him to have presented a claim in relation to previous years of employment when he was not paid holiday pay. We therefore cannot consider his claim for years before 2002 – 2003.
- However, Mr O'Hare, the respondent, admitted to the tribunal that he had been aware that the applicant was entitled to holiday pay, and yet had failed to pay him. We consider it quite outrageous that in this day and age an employer should ignore the rights of his employees, particularly to such a basic right as holiday pay.
- We therefore order the respondent to pay the applicant the two weeks holiday pay that remain outstanding.
CASE REF: 1782/03
APPLICANT: Patrick Downey
RESPONDENTS: 1. Gerard O'Hare
2. CDI Securiguard
The unanimous decision of the tribunal is that the applicant has been paid his full holiday pay for the year January 2002 – January 2003. In relation to the year January 2003 – January 2004 the applicant has been paid two weeks holiday pay. He is entitled to a further two weeks holiday pay, and the tribunal makes an Order that the respondent pay the remaining two weeks holiday pay due.
Appearances:
The applicant appeared in person and was unrepresented.
The respondents appeared in person and were unrepresented.
Once an applicant has been "put on enquiry", it will be considered "reasonably practicable" for him to present a claim.
Chairman:
Date and place of hearing: 16 January 2004, Belfast
Date decision recorded in register and issued to parties: