A Alston & Ors v The Doctors Laboratory Limited & Ors

Where an employer has failed to provide a facility for workers to exercise the right to paid annual leave, the right under regulation 13 of the Working Time Regulations 1998 carries over. This includes annual leave which was taken but not remunerated. The right continues until termination, or until the employer provides such a facility. An Employment Tribunal may not apply limitation provisions in a manner inconsistent with that principle.

The claimants were couriers who brought claims for unpaid annual leave against their alleged employer. They had not received holiday pay before 1 January 2018, although the employer began to pay holiday pay from that date.

The Employment Tribunal held that untaken leave carried over, but that leave taken without pay was subject to limitation provisions. The claimants appealed. The appeal was stayed pending the Court of Appeal’s decision in Smith v Pimlico Plumbers [2022] EWCA Civ 70.

The central issue was whether taken but unremunerated annual leave under regulation 13 of the Working Time Regulations 1998 could carry over despite the Tribunal’s application of limitation rules.

1. Appeal allowed by consent on ground 1. In light of Smith v Pimlico Plumbers [2022] EWCA Civ 70, the Employment Tribunal’s conclusion that leave taken without pay was subject to the limitation provisions could not stand.

2. The EAT substituted a declaration that the claimants were and remained entitled to carry over untaken paid annual leave under regulation 13 of the Working Time Regulations 1998. Taken but unremunerated leave was included within that expression. The entitlement continued until termination or, if sooner, until the employer provided a facility enabling the right to paid annual leave to be exercised.

3. The declaration resolved the legal principle only. The respondent did not concede that any claimant had worker status for a particular period, that any worker relationship was continuous, or the existence and extent of any carried-over entitlement on the facts. Those unresolved matters were for the Employment Tribunal.

4. Paragraph (2) of the Employment Tribunal’s judgment was set aside and the matter was remitted to the Employment Tribunal for directions. No order was made as to the composition of the remitted Tribunal.

• Employment Appeal Tribunal: Allowed ground 1 to the extent consistent with its substituted declaration, set aside paragraph (2) of the Employment Tribunal’s judgment, and remitted the matter for directions: [2023] EAT 13.
• Employment Tribunal: London Central Employment Tribunal, judgment promulgated on 6 February 2020, held that untaken annual leave carried over but that taken leave was subject to limitation provisions.