Khan v M K K Logistics

Claims for holiday pay under regulations 14 and 16 of the Working Time Regulations 1998 may be brought as unauthorised deduction from wages claims under section 23 of the Employment Rights Act 1996. The more generous limitation regime for a series of deductions may therefore apply. An employment tribunal must take account of the binding decision in Stringer v HMRC when determining accrued holiday pay claims. Where the first-instance decision contains insufficient findings of fact or reasons to permit substitution of the correct sum, the appropriate course is to remit the issue for reconsideration.

The claimant appealed against an Employment Tribunal decision awarding £15.77 for accrued holiday pay. The tribunal had treated the claim as limited to the claimant’s current holiday year and considered that there was no authority permitting recovery back to 13 August 2007.

The claimant relied on Stringer v HMRC, formerly known as Ainsworth v HMRC, which had been decided by the House of Lords before the tribunal’s decision but had not been considered. The central issues were whether the tribunal had applied the correct limitation regime and whether the Employment Appeal Tribunal should substitute a figure of £1,587.23 or remit the matter.

1. Appeal allowed. The Employment Tribunal had limited the holiday pay award to £15.77 without considering the binding decision in Stringer v HMRC [2009] UKHL 31.
2. In Stringer, claims under regulations 14 and 16 of the Working Time Regulations 1998 were held to fall within section 27(1)(a) of the Employment Rights Act 1996. Such claims could therefore be brought under section 23 of that Act and could benefit from the limitation provision applying to a series of deductions or payments under section 23(3).
3. That conclusion was authoritative and binding on the Employment Appeal Tribunal. The Employment Judge’s failure to take it into account required the appeal to succeed, although the omission was understandable because the issue had not been clearly raised and the decision had not been properly considered by the time of the hearing.
4. The Employment Appeal Tribunal declined to substitute its own figure. The first-instance judgment contained conclusions but insufficient reasons and no findings of fact showing what evidence had been accepted. The matter was therefore remitted to the same Employment Tribunal for a limited reconsideration in light of Stringer, including whether the facts entitled the claimant to the larger holiday pay figure.

• Employment Tribunal: awarded £15.77 for accrued holiday pay and made other orders concerning the claimant’s claims.
• Employment Appeal Tribunal: allowed the appeal and remitted the holiday pay issue to the same Employment Tribunal for reconsideration in light of Stringer v HMRC [2009] UKHL 31.