In person For the v Respondent — 2023

At this public preliminary hearing on 5 July 2023, Employment Judge Brown decided two issues: whether the claimant had an EU-law holiday pay claim, and whether the claims were barred by state immunity because they arose before 18 October 2017. The respondent relied on ss.1 and 16 State Immunity Act 1978. The tribunal referred to Benkharbouche and to the State Immunity Act 1978 (Remedial) Order 2023.

The claimant had presented his claim on 31 January 2018 and said he was dismissed on 4 September 2017. The tribunal held that his UK-law based complaints of ordinary and automatic unfair dismissal, redundancy payment, and unlawful deductions from wages all arose, or were outstanding, on the dismissal date and therefore before 18 October 2017. Because the Remedial Order only applies to causes of action arising on or after that date, those claims remained barred by the unamended State Immunity Act and were struck out.

The holiday pay complaint was not struck out. The tribunal accepted that, on the claimant's case, it was a claim for accrued but unpaid holiday on termination and therefore a claim based on EU law. The claimant said he had taken no holiday from the start of the 2016 holiday year until dismissal, and argued that the respondent's direction on 20 July 2017 to take 32 days' leave during the notice period was ineffective because of the notice requirements in reg. 15 WTR. The tribunal said the merits, any time-limit issue, and whether any notice was effective all remained to be determined, and it noted the claimant's separate contention about carried-over holiday pay from previous years. No monetary award was made at this stage.