Where an employee or worker takes holiday but is not paid for it, does the decision of the CJEU in King v Sash Windows entitle them to a payment in lieu on termination where the claim would otherwise be out of time?
No, held the EAT in Smith v Pimlico Plumbers.
Following the determination of Mr Smith's status by the Supreme Court, his claim for holiday pay was dismissed as out of time by the tribunal. He appealed to the EAT.
In King, the CJEU determined that a worker who was prevented from taking annual 'Euro' leave because the employer refused to pay, was prevented from exercising important EU rights, and could not be prevented from bringing a claim by domestic time limits. The claim could go back to 1996. However, nothing in King suggested that that applied where the claimant had actually taken the holiday.
The EAT also commented (obiter) that Bear Scotland v Fulton (which held that a claim for holiday backpay could not go back beyond a gap of more than 3 months) survived King and the decision of the NICA in Chief Constable of Northern Ireland Police v Agnew.
Thanks to Charles Murray of Queen Square Chambers for preparing this case summary.
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