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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Connolly v Countrywide Freight Group Ltd [2012] NIIT 01196_11IT (15 February 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/01196_11IT.html
Cite as: [2012] NIIT 1196_11IT, [2012] NIIT 01196_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1196/11
CLAIMANT: Martin Connolly
RESPONDENT: Countrywide Freight Group Ltd
DECISION
The unanimous decision of the tribunal is that:-
(i) The claimant’s claim of disability discrimination is dismissed.
(ii) The claimant is entitled to holiday pay in the sum of £3,785.23.
Constitution of Tribunal:
Chairman: Mr P Kinney
Members: Ms L Hutchinson
Mr P McKenna
Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Ms Patterson, Barrister-at-Law, instructed by McHale & Company, Solicitors.
Issues
1. The issues in this case relate to the claimant’s claim for outstanding holiday pay. The issues for the tribunal to determine are:-
(a) Is the claimant disabled within the terms of the Disability Discrimination Act 1995?
(b) Was the claimant directly discriminated against on grounds of his disability in relation to the non-payment of his outstanding holiday pay?
(c) Is the claimant entitled to his outstanding holiday pay under the terms of the Working Time Regulations (Northern Ireland) 1998?
(d) That at a Case Management Discussion an issue was raised as to whether or not the claim, or any part of it, was presented within the statutory time-limits? Ms Patterson did not pursue that aspect of the respondent’s case.
2. At the tribunal the claimant also raised a claim for reasonable adjustments; but having considered the submissions of the parties the tribunal refused to allow the claimant to amend his claim to include a claim for reasonable adjustments.
Findings of fact
3. The claimant was employed by the respondent from 24 August 2006 as a driver/loader. The claimant sustained an injury to his back in October 2008 and reported sick for work. He was signed off as unfit for work from this time until the termination of his employment on 14 March 2011. The respondent paid the claimant for annual leave accrued but not taken in the holiday year to 14 March 2011. The claimant sought payment for holidays accrued during his previous holiday years when he was off on sick leave. He referred the respondent to the European Court’s decision in the case of Stringer v HMRC (which will be referred to further below). The respondent refused to make payment of holiday pay on the basis that Stringer was a case applying to the Public Sector and not the Private Sector and that similar Private Sector provisions were contained in the Working Time Regulations. The respondent then made reference to the claimant’s contractual position where it was stated that holiday was forfeited if not taken by the end of the holiday year. The only exception was where there was an unforeseen operational emergency, at which time holiday may be carried over.
4. The claimant suffers from a herniated disc. The condition causes the claimant pain and limited movement. His condition has not improved since he suffered his back injury in October 2008 and he has been on a course of different treatments since then. In more recent times he has attended both a Chiropractor and Physiotherapist twice a week and is receiving pain management through his GP. He has constant pain relief through the application of opiate patches which are a slow release pain relief. Whilst this takes the edge off his pain the claimant still feels considerable pain at all times. The claimant complains that he has general restriction of movement. He finds it hard to wash or to prepare food. He cannot stand or indeed sit for lengthy periods of time. Pain stops him from utilising high and low cupboards. Whilst his pain is constant it varies in severity. He finds all normal household chores difficult to do and all create varying degrees of pain. He can sustain a loss of power in his left leg and pins and needles at times. He can only drive for about a 10 – 15 minute period and feels that life is generally falling apart. He has received assistance from the Occupational Health Services who have provided him with aids in the house. He has safety bars fitted on his bath and a support frame for assistance in the bathroom. He has two banisters fitted to his stairs to allow him to negotiate the stairs. He also requires the aid of a device to get out of bed. He uses a pick-up stick to get things from the ground and requires the assistance of an extra long shoe horn to help get dressed. The claimant maintains that his condition affects every aspect of his life.
5. No medical evidence was provided of the claimant’s condition. He, however, was seen regularly by his GP and also regularly by an Occupational Health Service on behalf of the respondent. This medical evidence was not produced to the tribunal either.
6. The claimant accepts that he did not request his holidays in the holiday years of 2008, 2009 and 2010 during those leave years. He first requested his holiday pay for the leave he felt he was entitled to in those periods when his contract of employment was being terminated by the respondent. The claimant was not fit to take holidays during that period of time because of his back condition.
7. It was the practice that holidays were generally booked in January of each year, at the beginning of a leave year, to ensure getting time off when requested. Most of the drivers would be making the same request for busy periods.
8. The respondent required one month’s notice of a request for holidays. However, on occasions shorter notice could be given of holidays. Holidays were also offered on occasion to individuals including the claimant if they were off sick. Retrospectively this was changed to holidays so that the employee got paid. The respondent did not operate any sick pay scheme other than the statutory sick pay scheme. Changing a sick day to holiday pay enabled an employee to be paid for the time off.
The law
Disability
9. Under the terms of the Disability Discrimination Act 1995 a person suffers from a disability where they have a physical or mental impairment which has a substantial and long-term adverse affect on their ability to carry out normal day-to-day activities.
10. A person is directly discriminated against if that person is treated less favourably than another person would be and the reason or grounds for that less favourable treatment is the person’s disability.
11. A worker’s entitlement to annual leave is set out in the Working Time Regulations (Northern Ireland) 1998.
Regulation 13 provides that a worker is entitled in each leave year to a period of leave determined in accordance with that Regulation.
Regulation 13(9) provides:-
(9) “Leave to which a worker is entitled under this Regulation 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.”
12. Regulation 15(1) provides:-
“(1) A worker may take leave to which he is entitled under Regulation 13(1) 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).”
Regulation 15(2) makes provision for a counter-notice from the employer. If an employee serves notice under Regulation 15(1) then it must be provided twice as many days in advance of the start of the holiday as a number of days for which holidays are sought.
13. Regulation 16(1) provides:-
“(1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under Regulation 13, at the rate of a week’s pay in respect of each week of leave.”
Tribunal’s conclusions
Disability
14. The tribunal did not have the benefit or advantage of seeing medical evidence from either party in relation to the claimant’s condition. However, having heard the evidence of the claimant and finding the facts that the tribunal has found, the tribunal concludes that the claimant is disabled within the definition of the Disability Discrimination Act 1995. It is clear that his condition has lasted for a period in excess of two years and has severely limited his normal day-to-day activities. He requires assistance from a number of devices to conduct daily life. The respondent clearly had knowledge of the claimant’s condition from their involvement of their own Occupational Health experts and the provisions of fit to work notes from the claimant’s GP.
15. In considering the claimant’s claim for disability discrimination, however, the tribunal is not satisfied that there is any evidence before it that the claimant was treated less favourably in not being paid his holiday pay because of his disability. As was discussed during the hearing the appropriate comparator for this case (or indeed a case of disability-related discrimination if such had been made) would be another employee of the respondent who was off on long-term sick leave, and had not made requests for their annual leave during the currency of the leave year but who was not disabled. In those circumstances, the tribunal concludes that the respondent would not have treated that individual any differently than the claimant and so the tribunal dismisses the claimant’s claim for disability discrimination.
16. The situation, however, regarding the claimant’s rights under the Working Time Regulations is more complicated. In the case of Stringer v HMRC [2009] ICR 932 the Court of Justice of the European Union confirmed that leave entitlement accrues during periods of sick leave. Entitlement to annual leave derives from the existence of the employment relationship, not the worker’s capacity to perform work. At Paragraph 41 of its judgment the Court said:-
“It follows that, with regard to workers on sick leave which has been duly granted, the right to paid annual leave conferred by Directive 2003/88 on all workers … cannot be made subject by a Member State to a condition concerning the obligation actually to have worked during the leave year laid down by that State.”
17. Harvey on Industrial Relations and Employment Law, Division C1, Paragraph 172, sets out the principle conclusions reached by the Court:-
“ - the right to annual leave continues to accrue during sick leave
- the Directive does not prohibit national legislation providing that annual leave cannot be taken during sick leave, but nor does it require that national legislation should permit this
- any leave that a worker was unable to take because of being on sick leave can be taken on his or her return to work, notwithstanding that this may be in a later leave year
- leave entitlement may not be replaced by a payment in lieu unless the employment is terminated before the worker has the opportunity to take his or her leave
- if payment in lieu is payable, it is to be paid at the rate at which the leave would have been remunerated if taken as leave.”
18. Harvey goes on at Paragraph 188 to say:-
“The position under the WTD can be summarised as being that it is a matter for national law whether a worker is to be permitted to take (and be paid for) annual leave during a period of sick leave, but there can be no compulsion on a worker to take the two categories of leave simultaneously; that if annual leave cannot be taken in a particular leave year because of the incapacity (or the incidence of other statutory leave) it must be capable of being carried forward to the next leave year; and that the only circumstances in which annual leave due under the WTD may be converted into a payment in lieu … is on termination, when taking the leave ceases to be a possibility.”
19. The situation has been further complicated by two EAT decisions issued in 2011. The first, NHS Leeds v Larner [UKEAT/0088/11/CEA] was heard by Mr Justice Bean on 29 June 2011. The question he considered was precisely the same question the tribunal must consider in this case. The issue is, if the worker does not submit a request for annual leave before the leave year ends, does the worker forfeit the entitlement. In that case, Mr Justice Bean accepted the submissions made by the claimant’s counsel on the meaning of Regulation 15. Regulation 15(1) does not say a worker may only take leave to which he is entitled after giving notice under Regulation 15(1). He referred to the decisions in the European Court of Justice of Stringer and also of Pereda v Madrid Movilidad SA [2009] IRLR 959. He quoted from the ECJ in that case:-
“Thus, the right to paid annual leave is not extinguished at the end of the reference period laid down by national law where the worker was on sick leave for the whole or part of the leave year and has not actually had the opportunity to exercise that right.
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.
… [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.”
20. Mr Justice Bean considered the claimant’s circumstances in that case. She was signed off sick for the whole of the pay year 2009 – 2010. He said:-
“She is therefore presumed not to have been well enough to exercise what the Luxembourg Court has described as her ‘right to enjoy a period of relaxation and leisure’, so as a matter of law, contrary to what a layman might have thought, she did not have the opportunity at any time during 2009 – 2010 to take her annual leave. Instead she 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. The right to be paid for that annual leave crystallised on the termination of her employment; as it happens, only a few days after the end of the pay year.”
21. Mr Justice Bean did posit that the situation might be different in the case of a fit employee who failed to make a request for leave during the whole of the pay year. This is because that worker has ‘had the opportunity’ to exercise the right to leave.
22. Mr Justice Bean’s conclusion is that Regulation 15 is not a mandatory provision. The EAT noted that if the provisions were mandatory this could lead to curious conclusions, giving the example of a worker who could make a non-compliant request for holiday which, if the employer agreed to it, could be deemed not to therefore constitute a holiday for the purposes of the Regulation.
23. This decision was followed less than two weeks later by another decision of the EAT heard on 13 July 2011 before the President, Mr Justice Underhill. This was the case of Frazer v South West London St George’s Mental Health Trust [UKEAT/0456/10/DA]. This judgment was not handed down until 3 November 2011. It makes no reference to the case of Larner.
24. In this case the EAT considered a number of matters, including the same question of unpaid statutory holiday pay in respect of earlier leave years during which the claimant had been on long-term sickness absence. In this case after reviewing the various authorities, including those set out above, of Stringer and Pereda the EAT concluded that an employee is only entitled to holiday pay under Regulation 16 if he or she has actually taken the leave in respect of which they seek to be paid and has done so in accordance with the Working Time Regulations by giving notice in accordance with Regulation 15.
25. The EAT accepted that the claimant accrued the right to annual leave in each of the two years in question in that case. The EAT considered the other authorities of List Design Group Ltd v Catley [2002] ICR 686, Kigass Aero Components Ltd v Brown [2002] ICR 697 and Canada Life Ltd v Gray [2004] ICR 673. The EAT considered that the cases of List Design and Kigass were wrongly decided on the issue in question. The EAT observed that the policy of the Regulations was that employees should be entitled to take their full annual leave in the interests of health and welfare. There was good reason for paying employees for periods of leave taken but that has no application where leave has not been taken and that is why under both the Directive and the Regulations commutation of leave to holiday pay is expressly proscribed. The EAT concluded that it was right to treat Regulation 16(1) as requiring payment in respect of each week of leave actually taken. The applicants did not exercise their rights to take holidays during the years in question and the ordinary rule is ‘use it or lose it’. The EAT posed the question of why should the fact that if employment terminates years later should an entitlement to holiday pay arise which had not arisen at the time. At Paragraph 30 the EAT said:-
“The claimant’s entitlement to holiday pay under Regulation 16(1) depended on her having given proper notice under Regulation 15 of her intention to take annual leave, and she did not do so. It might appear somewhat artificial for an employee who is not at work anyway to have to give notice of an intention that part of her absence should count as holiday; but that merely reflects the artificiality of a period of long-term sickness counting as holiday at all.”
26. The EAT then considered whether or not this conclusion is consistent with the ECJ authorities of Stringer and Pereda. In the EAT’s view it was. They state at Paragraph 31:-
“It is clear from the passage from the judgment in Pereda set out at Paragraph 18 above that an employee who is off work as a result of sickness has a choice. He or she may chose to take annual leave during the period when they would any way be absent sick – that might at first seem a surprising choice, but if his or her sick pay is exhausted it might in fact be attractive – or they can ask for it to be deferred until a later period. But it is for the employee to ask : see the phrases ‘on his request’ in Paragraph 22 of the judgment and ‘where the worker does not wish’ in Paragraph 25. If the claimant had in the present case made a request to take the annual leave accruing in either 2006/2007 or 2007/2008 following her recovery, the Trust might have been obliged to accede to that request; and if she had not had the chance to take that holiday before her termination supervened it might be necessary to read Regulation 14 as entitling her to a payment in lieu. But that is not what happened.”
27. Implicit in the EAT’s view in Frazer there would appear to be an assumption that an employee who is off work as a result of long-term sickness is in a position to choose whether to take annual leave during a period when they would otherwise and anyway be absent sick. The EAT approach in the Larner case however is that there would be an presumption that a worker is not well enough to exercise what was called ‘the right to enjoy a period of relaxation and leisure’ and so as a matter of law did not have an opportunity at any time to take annual leave. Various difficulties also seem to arise if the analysis of Frazer is followed.
In Paragraph 31 of the Frazer decision the EAT appears to envisage that the claimant could have made a request to take annual leave accruing in earlier leave years following her recovery and that ‘the Trust might have been obliged to accede to that request’. This appears to draw a distinction between an individual who does not seek their leave during a leave year but recovers from long-term sick absence and then makes the request for leave following recovery. The tribunal appears to take the view that the employer might be obliged to accede to the request. On the other hand, is the situation of someone who is long-term sick and does not make a request for their leave entitlement in the actual leave year but who then has their employment terminated by reason of their absence and they would neither be entitled to their holidays nor to payment in lieu. It is hard to see the distinction made between the two cases.
28. After some consideration and bearing in mind that the tribunal is not bound by the decisions of the Employment Appeal Tribunal although, of course, they have considerable weight, we consider that the better approach is that adopted by Mr Justice Bean in the Larner case. It is our view that Regulation 15 is not to be read in a mandatory manner but in a permissive manner. If Regulation 15 is complied with, in that Regulation 15(1) notice is made and the employer fails to give a counter notice then this will guarantee the employee can take leave at the specified time.
29. Even if we are wrong in this, we would distinguish the facts of this case from those of Frazer in the following two important grounds:-
(a) In Frazer there was no evidence that the claimant was unable to take leave during the appropriate period. In this case the claimant has given evidence, which the tribunal has accepted, that he was not in a position to seek or avail of his holidays at the time because of his sickness.
(b) The employers in this case did not follow the Regulations themselves in their general approach to the granting of holidays. They applied their own provisions in relation to the granting of holidays, including retrospective permissions.
30. The tribunal therefore determines that the claimant is entitled to holiday pay as sought by him. The parties have agreed the appropriate figure of quantum as £3,785.23 and accordingly the tribunal awards the claimant that sum in relation to unpaid holiday pay.
31. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 November 2011, Belfast
Date decision recorded in register and issued to parties: