Timbulas v The Construction Workers Guild Ltd

A claimant seeking holiday pay bears the burden of proving the holiday days for which payment is claimed. The civil standard is the balance of probabilities, but it does not permit a tribunal to guess where the evidence does not identify whether unpaid days were voluntary holiday, bank holidays, site closures or weather closures.

Where the record leaves a genuine doubt whether a party had a fair opportunity to advance a pleaded and documented consequential-loss claim, the appellate tribunal may determine that claim itself if the evidence is available and the other party is not unfairly prejudiced. Interest may compensate a claimant kept out of holiday-pay sums.

The claimant, a construction worker, appealed from the remedy judgment of Employment Judge Southam at Watford following a successful holiday-pay claim. The Employment Judge awarded sums for bank holidays and accrued final-year entitlement, but declined to award further sums because the claimant could not identify the holidays he had taken.

Two grounds proceeded: whether the tribunal should have made findings about Christmas closures, and whether it had failed to hear or determine a claim for consequential loss. The claimant also sought to introduce a late challenge to an earlier liability finding concerning unused holiday entitlement in previous years.

1. Appeal allowed in part. The challenge to the refusal of additional holiday pay failed. The Employment Judge was entitled to hold that the claimant had not discharged the burden of proving the relevant holiday days, other than bank holidays. The claimant's evidence did not permit a finding whether particular unpaid periods were voluntary holidays, bank holidays, site closures or weather closures.
2. The issue concerned the burden of proof, not the civil standard of proof. Although the applicable standard was the balance of probabilities, it remained for the claimant to adduce sufficient oral or documentary evidence. The tribunal could not substitute a guess for a finding on that standard. It was reasonable to expect some attempt to reconstruct periods away from work through available records or enquiries.
3. The Employment Appeal Tribunal refused permission to add a late ground challenging the unappealed liability finding on unused holiday entitlement in prior years. No appeal lay before it on limitation either.
4. On consequential loss, there was material uncertainty about whether the claimant had been given the opportunity he expected to make submissions at the remedy hearing. The interests of justice therefore required the issue to be heard. The claim was within the wide drafting of the claim form and had been identified in the schedule of loss, the claimant's skeleton argument and his wife's witness statement. The respondent was not taken by surprise.
5. Remittal was unnecessary. The wife's uncontradicted evidence about the family finances was capable of being accepted, and she could properly give that evidence as the person who dealt with them. The mortgage's early-repayment penalty meant that the claimed mortgage rate could not be awarded for the whole period. Interest at 5% above base rate was ordered on the holiday-pay sums already awarded, to compensate the claimant for being kept out of that money.

• Employment Appeal Tribunal: Allowed the appeal only on consequential loss and ordered interest at 5% above base on the holiday-pay award.
• Employment Tribunal, Watford: At a remedy hearing on 23 August 2012, awarded holiday pay for bank holidays and accrued unused final-year entitlement, but made no further award for unproved holiday days.