Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The claimant was introduced to the second named respondent through a friend. This was with the view to taking up employment. This occurred in February 2018 when the claimant was working as a chef in the respondent restaurant. There was never any statement of particulars given and this led to some confusion over who the claimant was employed by. However, the claimant did receive payslips throughout his time with the respondent which bore the name ‘India Taste Limited’.
The claimant continued in his role until his employment was terminated in April 2019. The issue arising was that no holiday leave had been taken and no holiday pay had been given. The Tribunal found that there was no evidence that either respondent had given the claimant the opportunity to take paid annual leave, encourage him to do so or made him aware of his right to take the leave (and that it could be lost if not taken by a particular point). One of the issues arising was the application of the Working Time Regulations (NI) 2016 when it comes to annual leave being carried forward with Regulation 16 allowing 1.6 weeks to be carried over into the following year where there is agreement. The Tribunal found that there was no agreement to that effect here meaning that the claimant was entitled to the whole holiday pay that he was unable to take during the first year of his employment.
The claimant was also able to claim two weeks’ pay on the basis that he was not given a written statement of particulars.
Practical Lessons
This case may seem quite simple on the face of it but it does demonstrate an important point when it comes to holiday pay. There is an onus on the employer to make the claimant aware that they have holiday leave to take and that they should be encouraged to take it or be told that they will lose the entitlement. As this was not done, the claim for the whole amount was allowed even though the ‘year’ had elapsed. Employers should be mindful of ensuring that employees are aware of their entitlement and when it has to be taken by.
NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
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