Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/01154_11IT.html
Cite as: [2012] NIIT 1154_11IT, [2012] NIIT 01154_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1154/11

CLAIMANT: Donna Irvine

RESPONDENT: Belfast Health & Social Care Trust

Certificate of Correction

The tribunal decision issued on 9 March 2012 is corrected as follows: at paragraph 44 it should read “The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to entertain the complaint of the claimant in respect of the complaint arising from the annual leave accrued in 2009/2010. Accordingly the complaint in respect of an alleged breach of Regulation 13 (1) in respect of the leave sought by the claimant for January 2010 and February 2010 is dismissed. The tribunal is satisfied that it does have jurisdiction to entertain the complaint of the claimant in respect of an alleged breach of Regulation 13 (1) arising from the annual leave accrued in the leave year 2008/2009. The unanimous decision of the tribunal is that the claimant is entitled to a declaration that the respondent has refused to permit her to exercise her right under Regulation 13 (1) in respect of annual leave which accrued between 1 April 2008 and 31 March 2009”.

Chairman: ____________________________________

Date: ____________________________________

THE INDUSTRIAL TRIBUNALS

CASE REF: 1154/11

CLAIMANT: Donna Irvine

RESPONDENT: Belfast Health and Social Care Trust

DECISION

The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to entertain the complaint of the claimant in respect of the complaint arising from the annual leave accrued in 2009/2010 in view of the provisions of Regulation 30 (2) of the Working Time Regulations (Northern Ireland) 1998. Accordingly the complaint in respect of an alleged breach of Regulation 13 (1) in respect of the leave in January 2010 and February 2011 is dismissed. The tribunal is satisfied that it does have jurisdiction to entertain the complaint in connection with the annual leave accrued in the leave year 2008/2009 and the claimant is entitled to a declaration that the respondent has refused to permit her to exercise her right under Regulation 13 (1) in respect of annual leave accrued between 1 April 2008 and 31 March 2009 as well founded. The claimant’s complaint in respect of unauthorised deduction of wages is dismissed, having been withdrawn by the claimant on the morning of the hearing.

Constitution of Tribunal:

Chairman: Ms M Sheehan

Members: Mrs E Torrans

Mr J Welsh

Appearances:

The claimant appeared on her own behalf.

The respondent was represented by Ms Aideen Ward, Solicitor of Directorate of Legal Services.

The Issues

1. The claimant in her claim, received in the Office of the Industrial Tribunal and Fair Employment Tribunal on 11 May 2011, stated she was seeking compensation for unauthorised deductions of wages and refusal to allow annual leave under the Working Time Regulations. The claimant had attached to her claim a five page document setting out the history of her employment by Belfast Trust since 29 May 2001. The portion which was relevant to this claim can be summarised as follows. In 2008 the claimant had a period of sick leave from 6 October 2008 until 20 August 2009. Prior to returning to work in August 2009 she attended a meeting with her union representative when she raised the issue of accrued annual leave entitlement as well as arrears of payments in respect of a leased vehicle linked to her employment due to being on unpaid sick leave from February 2009. Between August 2009 and February 2010 the claimant continued to raise the issue with her line management about her leave entitlement and in particular whether the respondent would permit the claimant to carry the leave accrued during her sick leave period in 08/09 into the next annual leave year. The claimant had further periods of sick leave, some short and some of a longer duration. The periods that concern this tribunal occurred from 25 March 2010 to 9 June 2010 and from November 2010 continuing to 31 March 2011. The claimant complains that on 16 March 2011 an email was received from her employer advising her that “Belfast Trust policy of 5 day carriage of leave stands...pending guidance from the Department. Your request in relation to the carriage of annual leave will be kept on file by HR with other staff who have made this request...A meeting is being planned to look at your annual leave entitlement in relation to your service prior to joining Intensive Home Care”. From another email dated 28 April 2011, attached to the claim form, it is clear that the claimant’s complaint as evidenced by the email dated 16 March 2011, concerns entitlement to annual leave for the leave years 08/09 and 09/10.

2. A response dated 1 July 2011 was entered, signed by Margaret Goodhall on behalf of Belfast Health & Social Care Trust, indicating that it contested the claimant’s claims and that the issue of the correct annual entitlement had been resolved. The respondent contended that on 26 February 2010 the claimant first raised the issue of entitlement to carry over to the oncoming leave year all annual entitlement not taken whilst on long term sick in the leave year 08/09. The claimant raised a grievance on 30 March 2011 having had her contractual position confirmed to her. The respondent contended that the claimant had received her full contractual entitlement.

3. On the morning of hearing the claimant withdrew any claim regarding unauthorised deduction of wages and confirmed she was proceeding only with the claim under the Working Time Regulations. Accordingly the claim of unauthorised deduction of wages was dismissed.

4. The issues for the Tribunal as clarified at hearing by the parties were:-

(a) Whether the tribunal had jurisdiction to entertain the claimant’s complaint in view of the provisions of regulation 30 (2) of the Working Time Regulations (Northern Ireland) 1998 as amended regarding the time limit for presentation of a claim?

(b) If the tribunal considered it had jurisdiction then the issue was whether the respondent refused to permit the claimant to avail of her entitlement to annual leave in accordance with Regulation 13 and 15 of the Working Time Regulations (Northern Ireland) 1998 as amended and if so what remedy the tribunal considered was just and equitable to award the claimant.

Evidence

5. The Tribunal considered the claim, response, all the documentation submitted by the claimant with her claim, documents handed in during the hearing and identified as A1 to A5 and R1 to R3. The tribunal heard evidence from the claimant, Ms Marie Scullion and Mr Martin Adams. The tribunal concluded the following findings of fact on the balance of probabilities.

Findings of Fact

6. The claimant was born on 9 August 1975. She commenced employment with the respondent on 29 May 2001 but was entitled to annual leave on the basis of her continuous service from 18 October 1999 reflecting her employment with another trust from that date. The claimant was employed as an Intensive Home Care Worker working initially for 27.5 hours per week. The claimant reduced her working hours to 22 hours a week from September 2009. She was paid £185.76 net per week.

7. It was agreed by the parties that the claimant had four periods of sick leave during the relevant periods under consideration by the tribunal. The sick periods were 8 March 2008 until 7 September 2008, 6 October 2008 to 19 August 2009, 25 March 2010 until 9 June 2010 and 1 November 2010 until 31 March 2011.

8. The claimant was allocated work as set out in a monthly duty rota. There were times when returning from sick leave she would find she had not been allocated any duty on that month’s rota. She would be paid by her employer to remain at home as if she had attended work during that rota period.

9. The annual leave year for all employees of the respondent ran from 1 April to 31 March the following year. Since the leave year of 2008/09 staff were required to apply in writing for annual leave and give four weeks notice. Staff were entitled to a response to their annual leave application within 7 working days of its receipt in the relevant office. The relevant policy document stated there was an expectation that leave allocation will be taken within the leave year. The respondent’s documentation made clear that “only in exceptional circumstances can up to five days be carried from one year to the next”. This documentation was dated 19 November 2008 and carried the names of two of the witnesses to this tribunal Marie Scullion and Martin Adams.

10. In the leave year 1 April 2008 to 31 March 2009 the claimant was on sick leave from 8 March 2008 until 7 September 2008 and again on sick leave from 6 October 2008 until 19 August 2009. This meant that she was present for duty from 8 September 2008 until 5 October 2008 for the leave year 08/09. The claimant claimed she did not apply for any leave between 9 September 2008 and 5 October 2008. It appeared from the respondent’s records that eight days from 18 September 2008 to 2 October 2008 were allocated as annual leave by the respondent. The respondent paid the claimant’s salary while she remained at home as she had returned to duty but had not been allocated any duty on the rota for the month of September 2008. When the rota for October 2008 issued the claimant discovered she had been put on annual leave for the entire month by the respondent. There had been no discussion with the claimant before this roster issued. The claimant reported sick on 5 October 2008. In the claimant’s own words that action, by the respondent of placing her on leave for the month of October 2008, was the reason she “went on the sick again”. The claimant remained on sick leave for the rest of the 08/09 leave year and returned to work nearly five months into the annual leave year for 09/10. The claimant returned to duty with effect from 19 August 2009 on a phased return and eight days of her annual leave for 09/10 was attributed by the respondent to annual leave days in September 2009. While an issue arose in early 2011, when the respondent furnished to the claimant a copy of her leave records, as to whether the claimant should have been requested to take the days in September 2009 as annual leave, the tribunal were satisfied that she did agree at the relevant time to take annual leave in September 2009 as part of an agreed phased return to duty. Further the claimant applied for and was granted leave in November 2009 and December 2009 to attend a number of courses.

11. In November 2009 the claimant requested leave for days in December 2009, January 2010 and February 2010. The respondent for reasons unknown did not acknowledge the leave requested for January 2010 or February 2010 and did not advise the claimant as to the outcome of her requests for leave. As a result of not availing of leave in January 2010 and February 2010 the claimant had substantial leave accrued, at that time in excess of 60 hours, near the end of the leave year for 09/10. In addition the claimant was still in communication with management regarding the unresolved issue of the leave not availed of in 08/09 leave year due to her lengthy sick absence in that leave year.

12. Prior to returning to duty in August 2009 the claimant had raised in meetings with management and in particular Mr Martin Adams, who held the position at that time of manager for Home Care and Intensive Care Service for South Eastern Health and Social Services Trust, the matter of her entitlement to avail of or to carry over annual leave for the year 08/09 and payment arrears that had accrued in respect of her car leasing agreement relating to a vehicle supplied for work purposes. By February 2010 the claimant was still awaiting a resolution of the issues raised prior to her return to duty in August 2009. The claimant had placed her query in the context of a case she referred to as the “Stringer” decision. A meeting took place in or about 26 February 2010 during which Mr Adams agreed to take forward with the respondent’s HR personnel the issue of whether a resolution could be found in a trade off of annual leave for the overdue car leasing payments.

13. The claimant was requested by her direct line manager to take annual leave in March 2010 because in the words of the claimant “there was no work for me on the rota”. The claimant refused to avail of annual leave in March 2010 because the fact there was no work for her on the rota would mean she could be at home on full pay in any event. The claimant stated she did not consider it “fair for her employer to ask her to take annual leave” because it would suit the rota.

14. Mr Martin Adams was the manager for Home Care and Intensive Care Service for South Eastern Health and Social Services Trust at the relevant time and is now manager for the Home Care Service on behalf of the respondent which is made up of six combined trusts. In this role he has responsibility for 450 staff at pay bands 2 and 3. Mr Adams is at pay band 7. There are 15 line managers for the Home Care staff who are answerable to Mr Adams. One of that 15 would have been the claimant’s line manager. The claimant is in pay band 3 reflecting her responsibility for the provision of more intensive care of clients. Mr Adams has limited authority in human resources matters. He did not have the authority to sign off the agreement sought by the claimant. He was supportive of her case and initially received no answer to the matters he raised.

15. The claimant believed a meeting took place in April 2010 but Mrs Scullion believed the meeting took place on 10 May 2010. None of the parties had any written record to produce to the tribunal regarding this meeting in the leave year 10/11. However all were clear that this was a meeting where Mr Adams advised that HR was not prepared to pay anything to the claimant in respect of the annual leave for 08/09 because the respondent was awaiting guidance from the relevant government department in light of the House of Lords decision in Her Majesty’s Revenue and Customs (Respondents) v Stringer and others (Appellants) [2009] UKHL 31. The default position of the respondent was to advise staff that only five days as permitted by contract could be carried over in these circumstances and that a list would be kept of any employee who indicated that they were discontented with the position. This was the information received by the claimant. Accordingly the tribunal concluded by May or June 2010 both Mr Adams and the claimant knew that the respondent had taken a position on the accrual of annual leave during sick leave, but there was also talk at this same meeting that Mr Adams, as manager, might have some discretion. Mr Adams agreed at the meeting to try to resolve matters with HR regarding the vehicle arrears.

16. The claimant was again on sick leave from 25 March 2010 to 9 June 2010 and from 1 November 2010 to 31 March 2011. While on sick leave she was in communication with Mr Adams regarding her leave entitlement and the arrears accrued in respect of the car leasing agreement. There was a series of emails between Mr Adams and the claimant in 2011. An email dated 19 January 2011, from Mr Adams in relation to the annual leave and car payment advised the claimant, “I accept this has been a very long process. As per my previous email I’ll do what I can to expedite things asap”. A further email dated 27 January 2011 from Mr Adams stated “In relation to the Car Leasing Invoice, I am putting a rush on this as you are quite right about the time delay in getting your annual leave sorted. In order that I have something to measure our findings against can you at your earliest convenience estimate for me how much annual leave that you feel you are owed. This will speed the process up”. An email dated 10 February 2011 stated “Marie Heaney is ready to approve a payment for leave you are owed and I hope to have it sorted by Tuesday/Wednesday of next week. It may be necessary to have the money paid to you as it may be more difficult (believe it or not) to have it put directly off the outstanding car lease bill. Would this be acceptable?” On 18 February 2011 the claimant received a further email from Mr Adams that stated “your annual leave has gone to senior management for approval. I don’t want to get into the detail lest it differs from the final amount however I can confirm that I have written to the finance department today and there certainly appears to be enough to cover the Car Lease. I can tell you at this stage that HR have advised that statutory days are lost while on sick leave. Also the Stringer case (House of Lords ruling that was made about the carriage of leave when on sick leave) has not yet become law and is not enacted by the Trust. ...I can at least confirm that I have passed the matter on for approval so that should come within days.” This email from Mr Adams in February 2011 indicated to the claimant that he understood from the respondent’s HR personnel that “some sort of payment would be made”.

17. Mr Adams accepted in his evidence that he did not communicate clearly to the claimant the negative decisions from HR personnel until he sent her the email dated 16 March 2011. In that email dated 16 March 2011 Mr Adams writes “In relation to annual leave HR has got back to me and they have instructed that Belfast Trust policy of 5 day carriage of leave stands. I have also been advised that this is the position pending guidance from the Department (DHSSPS). Your request in relation to the carriage of annual leave will be kept on file by HR with other staff who have made this request. ...You are therefore entitled to five days annual leave.”

18. The claimant had previous experience of industrial tribunal proceedings as she had lodged a claim in respect of unauthorised deductions from wages relating to the level of pay received as sick pay while absent from work prior to the absences which are the subject of these proceedings. This earlier claim was withdrawn in June 2009. The claimant did not submit her complaint about the refusal to allow her annual leave in excess of five days for the leave year 08/09 immediately after the February 2010 meeting or the April/May 2010 meeting as she believed Mr Adams had agreed to take forward with Human Resources a resolution of her accrued annual leave being set off in some way against the overdue car leasing payments. The claimant when she was first told in or about April/May 2010 that only “five days leave” could be carried over, was involved in a different grievance process which she claimed impacted on her frame of mind. No evidence was produced regarding this impact. Mr Adams indicated to her on a number of occasions during 2010, when she was attending meetings relating to other grievances, that her request regarding the annual leave accrued in 08/09 was being looked into.

19. Prior to attending the tribunal the respondent notified the claimant that the car leasing arrears had been written off by the respondent and further recovery of those payments would not be sought by the respondent from the claimant.

The Law

20. The Working Time Regulations (Northern Ireland) 1998 implemented the Working Time Directive into Northern Ireland law. The relevant Directive for this case is 2003/88/EC. The Court of Appeal in England and Wales has held in Gibson v East Riding of Yorkshire Council [2000] ICR 890 and British Airways PLC v Williams [2009] ICR 906 that the Working Time Directive is not directly effective in English law; so the tribunal must look to the text of the Regulations. There is no difference in the wording of the relevant regulations for England and Wales and those that apply in Northern Ireland.

21. Regulation 13 (1) provides that (subject to paragraphs (5), which is immaterial for present purposes) a worker is entitled to four weeks’ annual leave in each leave year. This must now be read in conjunction with Regulation 13A, introduced by amendment which increases the leave entitlement to 28 days with effect from April 2009. Regulation 13 (9) states:

- “Leave to which a worker is entitled under [Regulation 13] may be taken in instalments, but –

(a) It may only be taken in the leave year in respect of which it is due, and

(b) It may not be replaced by a payment in lieu except where the worker’s employment is terminated.”

22. Regulation 15 (1):

“A worker may take leave to which he is entitled under Regulation 13 and 13A on such days as he may elect by giving notice to his employer in accordance with paragraph (3), subject to any requirement imposed on him by his employer under paragraph (2).”

23. Regulation 15 (2) provides for what may conveniently be called an employer’s counter–notice. Paragraphs (3) and (4) of the regulation give further details of what the notice and any counter notice must contain. Paragraph (5) reads: “Any right or obligation under paragraph (1) and (4) may be varied or excluded by a relevant agreement.”

24. Regulation 16 (1) provides:

“A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13 and regulation 13A, at the rate of a week’s pay in respect of each week of leave.”

25. Regulation 30 provides the remedy available when the regulations are breached;-

“(1) A worker may present a complaint to an industrial tribunal that his employer –

(a) has refused to permit him to exercise any right he has under regulation 13 (1) ...or has failed to pay him the whole or any part of any amount due to him under regulation 14 (2) or 16 (1).

(2) An industrial tribunal shall not consider a complaint under this regulation unless it is presented –

(a) before the end of the period of three months ...beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made: or

(b) Within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3) Where an industrial tribunal finds a complaint under paragraph (1) (a) well founded, the tribunal –

(a) shall make a declaration to that effect, and

(b) may make an award of compensation to be paid by the employer to the worker.

(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to –

(a) the employer’s default in refusing to permit the worker to exercise his right, and

(b) any loss sustained by the worker which is attributable to the matters complained of.

(5) Where on a complaint under paragraph 1 (b) an industrial tribunal finds that an employer has failed to pay a worker in accordance with regulation 14 (2) or 16 (1), it shall order the employer to pay to the worker the amount which it finds to be due to him.”

26. As set out in Regulation 30 (2) (b) the three month time limit may be extended. For the time limit to be extended the tribunal first must be satisfied that it is not reasonably practicable for the complaint to have been lodged within the three month limit. Secondly, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. It is clear that the tribunal must be satisfied on the issue of reasonable practicability before it considers whether the further period within which the claim is lodged was otherwise reasonable. As this claim may not have been brought within the three month time-limit referred to in the provisions of the regulations it will be for the claimant to persuade the tribunal to extend the time, pursuant to the said provisions.

27. In particular, a claimant, who seeks an extension of time, pursuant to Regulation 30, which mirrors the provisions contained in Article 145 of the Employment Rights (Northern Ireland) Order 1996, has to establish two matters:-

(a) that it was not reasonably practicable for the claim form to have been presented in time, and on this point, the onus requires her to show precisely why she did not present her complaint in time; and

(b) that it was then presented within ‘a reasonable time’.

In relation to the test of ‘reasonably practicable’, the Court of Appeal in the case of Marks & Spencer v Williams-Ryan [2005] IRLR 562, has indicated that the said word should be given a liberal interpretation in favour of the employee; and in the case of Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, the Court of Appeal interpreted that ‘reasonably practicable’ means ‘was it feasible for the complaint to be presented to the tribunal within the relevant three months’?

28. The tribunal took cognisance of relevant case law including Her Majesty’s Revenue and Customs (Respondents) v Stringer and others (Appellants) [2009] UKHL 31; Gerhard Schultz –Hoff v Deutsche Rentenversicherung Bund and Mrs C Stringer and others v Her Majesty’s Revenue and Customs [2009] EUECJ C-350/06; Mr J Lyons v Mitie Security Ltd [2010] EAT and NHS Leeds v Mrs J Larner [2011] EAT.

Applying the Law to Facts Found

29. The origin of the 1998 Regulations lie in Council Directive 93/104/EC which was concerned with aspects of the organisation of working time. The article under which the directive was adopted, article 118a of the Treaty establishing the European Community, provided that Member States are to pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers. The Regulations detailed in the paragraphs above reflect the underlying philosophy of the Directive 2003/88/EC that it is necessary for the health and safety of workers that they should have a minimum entitlement to leave and that they should be paid so that they are in a position to take it. The exception is where a workers employment comes to an end at a stage where he has not taken his leave or part of his leave for that year. In those circumstances only does the legislation provide for him to receive money in lieu of the leave. Schultz –Hoff v Deutsche Rentenversicherung Bund; Stringer v Her Majesty’s Revenue and Customs [2009] EUECJ C-350/06 and C 520-06 paragraph 61 “It follows that, with regard to a worker who has not been able, for reasons beyond his control, to exercise his right to paid annual leave before termination of the employment relationship, the allowance in lieu to which he is entitled must be calculated so that the worker is put in a position comparable to that he would have been in had he exercised that right during his employment relationship.”

30. The House of Lords in Stringer determined that the transposition of Article 7 (2) of the Directive which gives a worker an entitlement to an allowance in lieu of leave at the end of his employment was transposed into national law for Northern Ireland by Regulation 14 of the Working Time Regulations (Northern Ireland) 1998 as amended. Lord Rodgers of Earlsferry described the equivalent regulation for England and Wales as “straightforward and not vulnerable to any criticism”. The House of Lords in that case considered the provisions of Regulation 30 which is relevant where a worker considers that his employer has refused to permit him to exercise any right he has under certain provisions of these regulations. The House of Lords in Stringer were concerned with a complaint under Regulation 30 (1) (b) (a failure to pay the whole or any part of any amount due to him under regulation 14 (2) or 16(1), this case concerns a complaint under regulation 30 (1) (a) –a complaint that the employer has refused to permit him to exercise any right the worker has under regulation 13(1). However the provisions for presentation of a complaint under either regulation 30 1 (a) or (b) falls to be determined in accordance with regulation 30 (2). The House of Lords in Stringer identified that the provisions of Regulation 30 provides a specific time limit for presentation of a claim – and is notable for not including a provision which includes an extension of the time limit where there has been a series of refusals to exercise the right to leave. Regulation 30(2) provides “that an employment tribunal is not to consider such a complaint unless it is presented within three months beginning with the date on which it is alleged that the exercise of the right should have been permitted, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the period of three months” –paragraph 15 of Lord Rodgers of Earlsferry in Her Majesty’s Revenue and Customs (Respondents) v Stringer and others (Appellants) [2009] UKHL 31.

31. Lord Walker in his judgement in Her Majesty’s Revenue and Customs (Respondents) v Stringer and others (Appellants) [2009] UKHL 31 at paragraph 41 sets out the underlying policy behind the Working Time Regulations (WTR) as “concerned primarily with health and safety, breaches of some of the provisions in Part 11 of the WTR such as regulations 10...13 (Entitlement to annual leave) do not give rise to readily quantifiable monetary claims. If a worker works and receives a week’s pay when he should have had a week’s holiday with pay, it is rest and recreation, not money as such, that he has lost. Consequently regulation 30 (Remedies) provides for statutory compensation to be awarded by the tribunal as is just and equitable in the circumstances having regard to the employer’s default and any loss sustained by the worker (see regulation 30 (1) (a) (i), (3) and (4)). Some other claims under Part II, that is under regulations 14 (compensation related to entitlement to leave) and 16 (payment in respect of periods of leave) are liquidated in nature. For them the remedy is an order for payment of the amount due: see regulation 30 (1) (b) and (5)”

32. The European Court in Her Majesty’s Revenue and Customs (Respondents) v Stringer and others (Appellants) [2009] UKHL 31; Gerhard Schultz –Hoff v Deutsche Rentenversicherung Bund and Mrs C Stringer and others v Her Majesty’s Revenue and Customs [2009] EUECJ C-350/06 addressed a number of questions which were referred by the national courts. However the relevant question for this case is the first question referred to the European Court – “Does Article 7 (1) of Directive 2003/88/EC mean that a worker on indefinite sick leave is entitled (i) to designate a future period as paid annual leave and (ii) to take paid annual leave, in either case during a period that would otherwise be sick leave?” In both of the cases referred to the European Court the sick leave at issue in the cases did not exceed the duration of the leave years applicable, in relation to paid annual leave under the relevant national law. The European Court in their judgement reemphasise that “it is common ground that the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill”. The Court had already determined in earlier cases that a “period of leave guaranteed by Community law cannot affect the right to take another period of leave guaranteed by that law” – paragraph 26 of the judgement. The difference between those earlier cases and this referral is that under Directive 2003/88 member states were empowered to lay down in domestic legislation conditions for the exercise and implementation of the right to paid annual leave – in effect to prescribe the specific circumstances in which workers could exercise the right. The court held “Article 7 (1) of Directive 2003/88 does not as a rule preclude national legislation or practices according to which a worker on sick leave is not entitled to take paid annual leave during that sick leave provided however that the worker in question has the opportunity to exercise the right conferred by that directive during another period”. The Court referred to earlier case law which approved in certain circumstances the availing of paid annual leave during a later period than the current leave year in which it was acquired – Case C -124/05 Federatie Nederlandse Vakbeweging [2006] ECR 1-3423 paragraph 30.

33. The European Court in holding that Article 7 (1) of the Directive did not preclude ruling out annual leave being availed of during sick leave, then went on to examine when that right could be exercised beyond the relevant leave year in which the leave accrued. At paragraph 42 and 43 of the judgement the Court stated “A provision of national law setting out a carry over period for annual leave not taken by the end of the leave year aims as a rule to give a worker who has been prevented from taking his annual leave an additional opportunity to benefit from that leave. The laying down of such a period forms part of the conditions for the exercise and implementation of the right to paid annual leave and therefore falls as a rule within the competence of the Member States. It follows that Article 7 (1) of Directive 2003/88 does not preclude, as a rule, national legislation which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a leave year or of a carry over period, provided however that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the directive.”

34. There have been some cases in England and Wales post “Stringer” and the consideration of that decision by the House of Lords. In Mr J Lyons v Milne Security Ltd the EAT was considering both unfair dismissal and entitlement to pay in lieu of untaken holiday pay. This was a case where an employee was only paid for hours that he worked and there was no guarantee of a minimum number of hours. The employee had applied in early March for payment of nine days annual leave which he held for that current leave year which was due to end on 31^st March of that year. This was a period in which he was not rostered to work. The employer refused to grant the leave as he had not given the required notice as set out in the contract of employment. The employee left his employment due to this refusal and for some other reasons. The relevant question to this claimant’s complaint is the consideration by the EAT on whether the notice requirements, whether statutory or indeed contractual, are superseded by an inalienable right of an employee to take paid leave within the leave year pursuant to the entitlement granted in Regulation 13. In effect is the employer legally obliged to permit an employee to take all of his paid leave within the leave year even if requested by the employee towards the end of the leave year at a time when it may not fit in with the staffing patterns of the business. In addressing that question the EAT concluded that the “notice provisions contained in Regulation 15 are capable of being varied by regulation 15 (5) (contractual terms) even if they impose a longer period of notice”. The EAT in Lyons concluded that “this is not an easy issue to resolve. The absence of case law would suggest that employees have not been denied their reasonable requests for holiday entitlement, even towards the end of a leave year. Employers will of course know that any unreasonable response would lead to grievances and even possible claims for constructive dismissal. Clearly managers generally take great care over making sure that full leave is taken with some contracts certainly permitting carryover of a small amount of unused leave. The IDS handbook on Working Time, in dealing with Regulation 15, makes the following comment on page 76: “Employers would not be able to use a notice requirement effectively to defeat a workers entitlement to annual leave in any given leave year”. That comment gives no justification for that somewhat bold statement. We are satisfied that the right to the statutory leave is not inalienable in that it has been made subject to the notice provisions and indeed Article 7 envisaged that there would be “conditions for entitlement” and that those conditions are set out in Regulation 15 subject to any contractual variation. Clearly that mechanism must operate during the whole of the leave year and the mechanism must not be operated by an employer in an unreasonable, arbitrary or capricious way so as to deny any entitlement lawfully requested. But it does seem to us that the mechanism, if operated correctly by both employee and employer, could result, as was envisaged in the Stringer case, in the loss of the right at the end of the leave year in respect of leave not taken” – see paragraphs 33 and 34 of Mr J Lyons v Milne Security Ltd. [2010] EAT

35. In another case post Stringer namely NHS Leeds v Mrs J Larner [2011] EAT Mr Justice Bean determined the question of whether entitlement to annual leave of a worker absent for the whole of a pay year through sickness depends on a worker submitting a request for that annual leave before the leave year ends in the negative. In deliberating on the issue Bean J had the benefit of the European Court decision in Stringer and others – and he described that decision as “the oracle at Luxembourg, in the form of a Grand Chamber of thirteen judges, gave an unusually clear and decisive answer”. Bean J concluded that “if a worker has given notice in accordance with regulation 15 (1) and the employer fails to give a counter notice in accordance with regulation 15 (2), then the right to take paid annual leave at the specified time crystallises and the employer cannot by giving later notice or changing his mind deprive the worker of that right”. The judge also considered the decision of the European Court in Pereda v Madrid Movilidad SA [2009] IRLA 959 – some eight months after the Grand Chambers decision in Stringer. This involved the impact of sickness on paid annual leave which had already been applied for and granted. The European Court concluded that Article 7 (1) precludes national provisions preventing a worker who is on sick leave during a period of annual leave from taking his annual leave after his recovery at a time other than that originally scheduled, if necessary outside the leave year or carry over period. While accepting that Article 7 (1) does not preclude as a rule “national legislation laying down conditions for the exercise of the right to paid annual leave ..including even the loss of that right at the end of a leave year or of a carry over period provided, however, that the worker...has actually had the opportunity to exercise that right.” The rationale for the Court’s conclusions is in the stated purpose of the entitlement which is “to enable the worker to rest and to enjoy a period of relaxation and leisure ..he is entitled to actual rest, with a view to ensuring effective protection of his health and safety ...it is only where the employment relationship is terminated that ..an allowance [may’ be paid in lieu of paid annual leave[...] The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill”. Bean J concluded that the claimant Mrs Larner “had the right to have her leave entitlement under regulation 13 carried over to the following year; and she had that right, in my view, without having to make a formal request for the leave to be carried over”. He went on to state, obiter dicta, “The position might be different in the case of a fit employee who fails to make any request for leave during the whole of the pay year. He or she might then lose the right to take annual leave, certainly if the contract so provides, because that worker, unlike Mrs Larner, has in the words of the court of Pereda, “had the opportunity” to exercise the right to leave”.

36. In this case there were two leave years which the claimant complained the respondent had refused to allow her annual leave namely 08/09 and 09/10. While there was divergence between the witnesses to exactly what was agreed between the participants, at meetings where entitlement to annual leave post the decision of the House of Lords in the Stringer case was discussed, it was clear to the tribunal certain matters were not in dispute between the parties. Those matters were that the claimant did raise with management a query about the accrual of her annual leave before she returned to work on 20 August 2009; that the employers contractual provision regarding the carrying over of leave was restricted to a maximum of five days; that the claimant was aware of the five days contractual provision; that in a meeting with Mr Adams in April or May 2010 the claimant was given the first indication that the leave unavailed of due to illness in 08/09 would not be allowed to be carried over to the next leave year other than five days as permitted by contract as the respondent was still awaiting departmental guidance on the impact of the House of Lords decision on Her Majesty’s Revenue and Customs (Respondents) v Stringer and others (Appellants) [2009] UKHL 31; that the claimant was led to believe by the manager Mr Adams there might be some set off agreed regarding the car leasing arrears, the respondent, in particular through the actions and emails of Mr Adams from February 2010 until 16 March 2011, led the claimant to believe that the initial refusal to carry over the leave for the leave year 08/09 was under some sort of reconsideration and her desire to offset her annual leave for the leave year 08/09 against the outstanding debt on her car lease agreement for the vehicle provided in connection with her employment might be facilitated; that conflicting information was provided to the claimant at times throughout 2010 to March 2011 as Mr Adams understood that the issue of crediting some sort of payment against the car leasing arrears in lieu of unavailed of annual leave for 08/09 leave year was being reconsidered by persons in Human Resources as late as February 2011; that Mr Adams considered that it was not communicated clearly to the claimant until 16 March 2011 the decision from Human Resources that the outstanding leave for the leave year 08/09 could not be availed of to discharge the car leasing arrears nor carried over to other leave years.

37. It appears clear from the wording of the regulations, in particular regulation 15 as set out at paragraphs 22 and 23 above that in order to exercise entitlement to annual leave under regulation 13, a worker is required to give prior notice to his employer in compliance with paragraph 3 of that regulation. It is also clear that under regulation 15 (2) that “A worker’s employer may require the worker (a) to take leave to which the worker is entitled under regulation 13 (1) or (b) not to take such leave, on particular days, by giving notice to the worker in accordance with paragraph (3)”. Regulation 15 (3) and (4) prescribe the details of the notice to be given regarding the leave to be taken or refused – and the time period within which that notice should be given. In this case the tribunal had to consider the complaint by the claimant that her employer the respondent had refused her permission to exercise her right to annual leave under Regulation 30 (1) (a) (i) in respect of two annual leave years – 08/09 and 09/10. To determine whether the tribunal had jurisdiction to consider the claimant’s claim for each leave year, it was necessary to establish the date “on which it is alleged that the exercise of the right (to annual leave) should have been permitted”.

38. In respect of the annual leave accrued and not availed of by the claimant in 09/10, the tribunal could only establish two periods of annual leave sought by the claimant and not permitted by the respondent, the period for the 12 to 18 January 2010 and the period for the school mid term in February 2010. The parties could only give limited evidence to the specific dates sought in February 2010 but all accepted it was in the second week or so of February 2010. The tribunal concluded on the balance of probabilities that the leave sought was for the week commencing 8 February 2010. It is not disputed that the leave requested for January 2010 and February 2010 was not acceded to – for an unknown reason. Accordingly the 12 January 2010 and the 8 February 2010 are the dates “it is alleged the exercise of the right should have been permitted”. The claimant knew as soon as the rota for those months issued that the leave had not been granted as requested. A rota issued generally three to four weeks in advance of the start of the monthly rota. It appeared to this tribunal that in respect of those leave periods, in light of the wording of Regulation 30, the presentation of a complaint in respect of the January leave should have been presented to the Industrial Tribunal on or before the 12 April 2010. The complaint in respect of the February 2010 leave should have been presented on or before the 8 May 2010. The complaint was not in fact presented till 11 May 2011. The tribunal noted that the claimant was absent on sick leave from late March 2010 to 9 June 2010 and then she reported fit for work for nearly four months, when she returned to sick leave on 1 November 2010 and remained absent until end of March 2011. However while on these periods of sick leave the claimant continued to be in communication with Mr Adams regarding her leave entitlement for the 08/09 year and the arrears accrued on her car leasing agreement. No evidence as to the nature of the illness that prevented the claimant attending work was provided to the tribunal and therefore the tribunal could identify no reason that had prevented the claimant presenting a complaint in respect of this unpermitted leave before the end of the period of three months beginning with 12 January 2010 and 10 February 2010 respectively. The tribunal is mindful that the claimant had previous experience of tribunal applications and was therefore aware of the time limits prescribed by legislation for the presentation of claims. Even if the tribunal is wrong and it was not feasible for the claimant to present her claim before those dates in April and May 2010, the tribunal is not satisfied that the claimant, by not bringing her claim until May 2011, brought it within a reasonable time thereafter. Even allowing for the fact the claimant is a lay person; the tribunal was not satisfied she displayed the necessary urgency regarding her application in the circumstances. In the circumstances the tribunal concluded the tribunal had no jurisdiction to entertain a complaint in respect of the 09/10 annual leave. Should the tribunal be wrong in that conclusion the tribunal noted when the claimant returned to work in August 2009, which was in the leave year 09/10, she was not on the duty rota for that September. Some of the days the claimant was paid for in September 2009 by the respondent were recorded as annual leave. During the hearing the claimant claimed these days in September 2009 should not have been recorded as annual leave, but it appeared to the tribunal that at the relevant time in August 2009 she had not objected to utilising some of her leave for the 09/10 leave year as part of a phased return to work. The tribunal also found it relevant that during the leave year 09/10 the claimant’s employer suggested to her that she avail of annual leave in March 2010 and the claimant refused to do so – because “she didn’t consider it fair for her employer to ask her to take leave” when the fact that they had not placed her on the rota for March 2010 meant she could remain at home and be paid as if she was at work. It appeared to the tribunal that the claimant only has a right to carry over leave under the Working Time Regulations under the case law discussed above “where the claimant did not have the opportunity to avail of the leave in the current annual leave year”. It is clear to this tribunal that the claimant did have an opportunity to avail of her outstanding leave for the 09/10 year in March 2010 and failed to take this opportunity. Accordingly had the tribunal considered there was jurisdiction to entertain the claim in respect of the leave applied for in January 2010 and February 2010, the claim would be dismissed as the respondent could not be said in those circumstances to have “refused to permit” the claimant to exercise the rights she had to take annual leave.

39. The situation regarding the 08/09 annual leave is more complicated and it was more difficult for the tribunal to determine “the date on which it is alleged that the exercise of the right should have been permitted”. It appeared to this tribunal that it is difficult for the claimant to give notice of her intention to avail of leave in respect of a particular period in circumstances where she was seeking clarification that she was to be permitted to avail of annual leave accrued during a lengthy period of absence on sick leave, until she knows whether or not her employer intends to recognise that entitlement, or until it is made clear to her that such entitlement will not be recognised. The situation is further complicated by the fact that the claimant over the subsequent leave year to 08/09 was absent from work on sick leave for eight months of that leave year. In this case the claimant, prior to her return to work from sick leave in the summer of 2009, raised a query with her employer, the respondent, as to her entitlement to avail of annual leave accrued in the previous leave year but not availed of due to sick absence. She was not given an immediate response from the respondent denying her any such entitlement. It is clear to this tribunal from the decisions in Stringer and Pereda the claimant should be entitled to carry over her annual leave for the 08/09 leave year provided she has not had an opportunity to avail of that leave during the leave year and that entitlement to carry over the leave does not depend on her having made a specific request for leave during that leave year. The tribunal noted that at no time did the claimant give notice in respect of the 08/09 leave year as required by regulation 15. The reason she did not give notice was because she was absent from work on sick leave for that year. The leave year 08/09 ran from the 1 April 2008 until the 31 March 2009 and the claimant was absent on sick leave for nearly all but a month of that leave year.

40. The tribunal could identify that at a meeting in April or May 2010 the claimant was told for the first time that the respondent had not reached agreement to incorporate the impact of the “Stringer” decision of the House of Lords into their contractual arrangements. Therefore at that point in time the claimant was advised she would not be allowed to carry over all the leave accrued and unavailed of during the leave year of 08/09 but her name would be kept on a list by her employer with other employees who like her had indicated a desire to avail of annual leave accrued but not availed of due to sick absence in that leave year. The tribunal accept that on one view this could be seen as a firm denial of entitlement to carry over the leave of the 08/09 leave year. In that case the time for presentation of the complaint would be on or before the 1 August 2010. However the situation in this case is complicated by the later actions of the respondent and in particular the communications between the claimant and Mr Martin Adams, the relevant manager for the claimant. It is clear Mr Adams sent to the claimant a series of emails throughout 2010 and 2011 which on at least two occasions sought details from the claimant as to her level of accrued leave and the car leasing payment arrears. Mr Adams sent these requests for information either at the behest of HR personnel because he had been led to believe that the respondent was reviewing their decision on the matters raised by the claimant despite earlier negative indications to him that any such payment could or would be made.

41. It appeared to the tribunal that the response provided to the claimant in May 2010 cannot be viewed as a firm denial but instead it was more of a “wait and see” response – pending guidance from the relevant government department. There was also some sort of agreement that Mr Adams would seek to take forward this issue of “write of” of car arrears against the accrued annual leave. This is supported by the series of emails exchanged between the claimant and Mr Adams on behalf of the respondent. At times those emails can only be read as giving an indication to the claimant that some agreement might be reached with her employer, the respondent, regarding the 08/09 leave which had not been availed of due to ill health. All parties agree the claimant requested to carry over her annual leave in excess of the contractual five days as she wanted management to facilitate some sort of credit payment in respect of a debt accrued in respect of her work provided vehicle while she was on unpaid sick leave. This is clearly a payment in lieu of annual leave and falls outside the scope of the regulations where an employee like the claimant has remained in the employment of the employer. However the tribunal could not rule out that once the claimant was made aware that no such payment could be accommodated that the claimant would not seek to exercise her entitlement to the actual leave. The tribunal concluded in light of the emails and the evidence of Mr Adams that this lack of clarity was largely due to the actions of the respondent and therefore it was not reasonably practicable for the claimant to submit a complaint during the period between May 2010 and 16 March 2011 as throughout that period the claimant was given conflicting messages from her employer as to whether the claimant would be allowed to avail of annual leave accrued in 08/09 in excess of the contractual allowance of five days. On 16 March 2011 she was advised by email that no payment in respect of her car leasing debt would be effected and that no entitlement would be recognised for that leave year of 08/09 other than the contractual carry over of five days. The claimant immediately indicated her intention to initiate a grievance at this apparent change of attitude by the respondent and then submitted a complaint some six weeks after the receipt of that notification. The tribunal viewed this email against the background of the series of emails in January and February 2011 and could understand the claimant being unclear as to whether this was a final response and once again attempting to resolve the issue without recourse to a tribunal. The tribunal were satisfied that in the circumstances of the history of events between the parties the time within which the claim in respect of the 08/09 leave was in fact presented was reasonable.

42. Unlike Mr Ainsworth and Mrs Stringer in the House of Lords case – whose employment had all ceased with their employer and therefore were complaints under regulation 30 (1) (b), the claimant’s complaints fall under regulation 30 (1) (a)(i). Accordingly the claimant is entitled to a declaration that the respondent has not permitted her to avail of leave accrued during the leave year for 2008 -2009. The tribunal also has to consider what compensation if any the claimant is entitled to under the provisions of regulation 30 (4). The amount is required to be what the tribunal determines what is just and equitable in all the circumstances having regard to the employer’s default in refusing to permit the worker to exercise his right, and any loss sustained by the worker which is attributable to the matters complained of. The real oddity in this case is that the claimant did not appear to want to avail of “additional rest and relaxation” in the following leave year but was more concerned to obtain a payment from her employer as a set off against a car leasing debt which had accrued when the claimant was absent on unpaid sick leave from February 2009 until August 2009. There is no doubt in the opinion of the tribunal that this debt or liability caused some measure of stress to the claimant and had potential to impact adversely on her enjoyment of any annual leave. At hearing the parties indicated that shortly before the commencement of the hearing the respondent had indicated to the claimant that a payment from her in respect of the debt for her car lease was no longer being sought. It appears the respondent was bearing that debt on behalf of the claimant. The tribunal was mindful that in the leave year 2008/2009 the claimant had returned to work on 7 September 2008 on a phased return. Some of the phased return appeared to include annual leave allocated by the respondent. On the claimant’s own evidence she went on sick leave again on 5th October 2008 when she found that the rota for October 2008, issued by the respondent without discussion with her, had placed her on annual leave for the entire month of October 2008. This action by the respondent appeared to annoy or upset the claimant. She gave it to the tribunal as the clear reason she went on the sick in early October 2008. The claimant did not return to work in that leave year 08/09. The tribunal considered the allocation of leave to her by her employer in October 2008, did present the claimant with an opportunity to avail of some of the leave accrued in the 08/09 leave year. There is nothing in the Working Time Regulations or the relevant Directive 2003/88 that states leave will be availed of only when it suits the employee. Indeed the wording of Regulation 15 specifically permits the employer to require a worker to take leave by giving notice to the worker within specified time limits. The tribunal considered that the rota which is issued three weeks to a month in advance could be viewed in certain circumstances as notice from an employer of a requirement to take leave. The tribunal was also aware there had been multiple occasions where the claimant returned from long absences of sick leave and she would not be on the rota issued in advance of her return. In those circumstances the claimant would be permitted by the terms of her contract to be paid as if she was at work but remain at home. It is clear from all the case law reviewed, in particular the judgment of Lord Walker in Her Majesty’s Revenue and Customs (Respondents) v Stringer and others (Appellants) [2009] UKHL 31 the underlying policy behind the Working Time Regulations (WTR) as “concerned primarily with health and safety”. At paragraph 41 of his judgement he declares that “breaches of some of the provisions in Part 11 of the WTR such as regulations 10...13 (Entitlement to annual leave) do not give rise to readily quantifiable monetary claims. If a worker works and receives a week’s pay when he should have had a week’s holiday with pay, it is rest and recreation, not money as such, that he has lost. Consequently regulation 30 (Remedies) provides for statutory compensation to be awarded by the tribunal as is just and equitable in the circumstances having regard to the employer’s default and any loss sustained by the worker (see regulation 30 (1) (a) (i), (3) and (4)).”

43. In the circumstances that pertain in this case when the claimant refused to avail of the leave allocated in the rota in October 2008 and March 2010, she was allowed to remain off the rota and was paid as if she had reported for work. Further when she returned in August 2009 from further periods of sick leave she was again not on the rota but was paid for the rest of that month as if she had reported for work. Accordingly in many of these instances the claimant had “rest and recreation” without loss of income. The tribunal considered that the reason the respondent has not incorporated the impact of the House of Lords decision in Stringer is that they still awaited what would appear to be long overdue guidance from the relevant government department as to how the contractual terms and conditions should be amended to incorporate that decision. The tribunal could not identify from the claimant’s evidence any loss sustained by the claimant attributable to the respondent’s refusal to allow her to carry over the 08/09 leave. The claimant appeared content to remain in the respondent’s employment and it appeared to the tribunal that her main focus throughout her dealings with her employer, the respondent, in respect of the annual leave for 08/09 was to seek a payment of some sort against her car leasing arrears rather than a clear desire to avail of the unused annual leave. The tribunal could not ignore the ex gratia discharge of the car leasing arrears by the respondent. In all the circumstances of this case it did not appear “just” or “equitable” to this tribunal that the respondent should be ordered to pay any compensation to the claimant for the breach of Regulation 13 (1).

Conclusion

44. The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to entertain the complaint of the claimant in respect of the complaint arising from the annual leave accrued in 2009/2010. Accordingly the complaint in respect of an alleged breach of Regulation 13 (1) in respect of the leave in January 2010 and February 2011 is dismissed. The tribunal does have jurisdiction to entertain the complaint in connection with the annual leave accrued in the leave year 2008/2009 and the claimant is entitled to a declaration that the respondent finds the claimant’s complaint that the respondent has refused to permit her to exercise her right under Regulation 13 (1) in respect of annual leave accrued between 1 April 2008 and 31 March 2009, is well founded.

Chairman:

Date and place of hearing: 12 and 13 December 2011, Belfast.

Date decision recorded in register and issued to parties: