The claimant commenced employment with the respondent company in December 2018.   The claimant subsequently resigned giving notice in November 2020.   The issue arose after the claimant was placed on furlough during October 2020.  When his employment concluded and he received his final payslip he noticed that there was no payment made for accrued holidays.  The respondent stated that the payment was made during his October pay when he was on furlough.  The claimant’s argument was that he never told the respondent that he wished to use his holidays and it was never made clear to him by the respondent that his holidays would be used.  Additionally, the claimant claimed that his notice pay was only paid at the furlough rate of 80% rather than a full rate.  The final argument made by the claimant was that he never received any statement of employment terms. 

When the lack of holiday pay in his final pay was raised, his manager stated ‘What do you think I can pay…more and more and more?’  The primary issue related to the holiday pay and whether the correct notice was given by the respondent that it was to be paid in October.  The Tribunal accepted the evidence of the claimant in this regard.  The respondent suggested they gave verbal notice of annual leave being used but this was only ever raised at hearing and not within its ET3 or witness statements.   Indeed, the issues relating to the holiday pay were only ever discussed by the respondent when the claimant queried his final pay.  A complicating factor was that the claimant received three different payslips in relation to October 2020.  The first had no mention of holiday pay, the second was after he had resigned and the third was in January 2021.  The Tribunal found that the latter two were self-serving and that it was telling that the respondent’s accountant was not called to give evidence.  Accordingly, the Tribunal found that the holiday pay was paid during October 2020 when he was still employed but it was without the claimant’s consent.   Therefore, the claimant was entitled to 16 days accrued but untaken holidays at the time of termination.  The Tribunal also found that his notice pay was only paid at a rate of 80% and an award was made to bring this to 100%.  Additionally, 2 weeks’ gross pay was awarded for the failure to give a written statement of particulars. 

Practical Lessons

This case yet again demonstrates some of the difficulties that arose with the use of furlough.  The issue was a small one relating to notice pay but the Tribunal has made it clear that it had to be paid at 100% rather than the furlough rate.  The holiday pay issue also demonstrates that there needs to be proper notice that leave is to be taken under Regulation 18(3) of the Working Time Regulations (NI) 2016.  This requires the employer to specify days the leave is to be taken and should be made known to the worker before the relevant date.  The fact this did not occur meant the annual leave remained even though the respondent had paid the sum in October. 

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/