B Knight v Off Broadway Limited

Under the temporary coronavirus carry-forward regime in the Working Time Regulations 1998, a worker claiming carry-forward had to show that, by reason of the effects of coronavirus, it was not reasonably practicable to take the relevant part of the four-week entitlement during the leave year. A restricted period did not itself establish a right to carry forward leave if the leave could reasonably have been taken later in that year.

Separately, the Shimizu principle required the employer to take sufficient steps to enable paid leave to be taken, including informing the worker in good time of the consequence of not taking it. Whether that duty was met is fact-sensitive and applies to employers of every size.

The claimant, manager of a bar, succeeded before the Employment Tribunal in claims for unfair dismissal and three days' holiday pay in the final leave year. The tribunal rejected his claim for payment for holiday said to have carried over from the 2019/2020 leave year.

He appealed only that rejection. He relied both on the temporary coronavirus amendments to the Working Time Regulations 1998 and on Shimizu. The central issues were whether coronavirus made it not reasonably practicable to take leave during 2019/2020, and whether the respondent had sufficiently enabled and informed him to take his annual leave.

1. Appeal allowed in part. The tribunal did not err in rejecting the claimant's reliance on the temporary coronavirus carry-forward provisions. The claimant, as the party asserting a right to carry forward leave under regulation 13(10), bore the burden of showing that the statutory conditions were met.
2. The correct inquiry was retrospective, at the end of the leave year. The tribunal had first to identify how much of the four-week regulation 13 entitlement remained untaken. It then had to decide how much of that leave was not taken because coronavirus made it not reasonably practicable to take it. A coronavirus-related restricted period did not automatically permit carry-forward. The tribunal could find that unused leave remained reasonably practicable to take after that period ended.
3. The tribunal's findings were sufficient to support its conclusion that, after the takeaway service was established and after trading resumed, coronavirus did not make it not reasonably practicable for the claimant to take leave before 30 September 2020. Its decision on the temporary amendments was therefore not erroneous or inadequately reasoned.
4. However, the tribunal erred in its treatment of Max-Planck-Gesellschaft zur Főrderung der Wissenschaffen e.V. v Shimizu, C-684/16. The fact that the claimant controlled his timetable and had opportunities to take leave did not answer whether the respondent had exercised sufficient diligence to enable him to take it. In particular, the tribunal made no finding that the respondent had informed him that untaken leave would be lost at the end of the leave year.
5. The obligation identified in Shimizu applies in principle to employers regardless of size, although what suffices is fact-sensitive. The case was remitted to the same Employment Judge if available to decide whether that obligation was met. If it was not, the tribunal must determine what leave the claimant had taken in 2019/2020 and any consequent entitlement to compensation. Any application to adduce new evidence was left to the tribunal.

• Employment Appeal Tribunal: appeal allowed in part and remitted: [2024] EAT 109.
• Employment Tribunal: the unfair dismissal claim succeeded; the wrongful dismissal claim failed; three days' holiday pay was awarded for the final leave year; the carry-forward holiday-pay claim for 2019/2020 was dismissed.