Fraser v Southwest London St George’s Mental Health Trust

An employer may raise non-compliance with section 32 of the Employment Act 2002 at any time before the tribunal begins considering the merits, subject to fairness. Under the Working Time Regulations 1998, holiday pay under regulation 16(1) is payable only in respect of leave actually taken in accordance with the regulation 15 notice procedure. The termination provisions do not revive untaken leave from earlier years. A worker absent through sickness may request annual leave during sickness or defer it, but must make the relevant request. The implied duty recognised in Scally does not generally require an employer to inform employees of rights arising from general law rather than from a collectively negotiated contractual term.

The appellant, a nurse dismissed in October 2008, brought claims including age and disability discrimination and unpaid holiday pay. The Employment Tribunal dismissed the discrimination claims because she had not complied with section 32(2) of the Employment Act 2002. It also dismissed claims for holiday pay relating to leave years during which she was absent through sickness, because she had not given notice under regulation 15 of the Working Time Regulations 1998.

The appeal challenged whether the employer could raise the section 32 point at the substantive hearing and whether notice was required before holiday pay could be claimed. The appellant also relied on the principle in Scally, arguing that the employer should have informed her of her holiday rights.

1. The appeal was dismissed. The Employment Tribunal was entitled to entertain the employer’s section 32 objection. Section 32(6) imposed a procedural condition, but did not require the issue to be pleaded in the ET3. Following Glasgow City Council v Stefan Cross Claimants, the point could be raised by any procedure permitted by the applicable rules, including an oral application, provided it was raised before the tribunal began considering the substantive merits. The employer had raised it at the last possible moment, but remained on the permissible side of that line. Any separate fairness complaint would require examination of how the point had been handled before the tribunal.

2. Holiday pay under regulation 16(1) was payable only in respect of annual leave actually taken. Taking leave required compliance with regulation 15, including notice specifying the dates on which leave was to be taken. This conclusion followed Kigass Aero Components Ltd v Brown. List Design Group Ltd v Catley and Canada Life Ltd v Gray were wrongly decided on the contrary issue and were not followed.

3. The rule against payment in lieu or carry-over of untaken leave applied notwithstanding the later termination of employment. Regulation 14 addressed the pro-rating of leave in the year of termination; it did not revive untaken leave from earlier years.

4. The decisions in Stringer v HM Revenue & Customs Commissioners and Pereda v Madrid Movilidad were consistent with that conclusion. A worker absent through sickness could choose to take annual leave during the sickness absence or request that it be deferred. The worker had to make the request. The appellant had made no such request.

5. The Scally principle did not assist. It concerned a valuable contractual right arising from a collectively negotiated term, of which the employee could not reasonably be expected to be aware. The relevant holiday entitlement arose from general law, so there was ordinarily no duty to advise the employee of it.

The alternative question whether the employer’s failure to answer a specific request for information might amount to breach of contract was not remitted, since it could not have improved the appellant’s position on the facts.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s judgment dismissing the relevant discrimination and holiday-pay claims.
• Employment Tribunal: held that the discrimination claims were barred by non-compliance with section 32(2) of the Employment Act 2002 and that the holiday-pay claims failed because no regulation 15 notice had been given.