Mr James Williams (of Counsel) For the v Respondent — 2021

The claimant, a Metropolitan Police officer who served from 26 August 1997 until compulsory retirement on ill health grounds on 21 April 2021, sought payment in lieu of untaken leave under regulation 14(2) of the Working Time Regulations 1998 for the period from 8 October 2014 to 31 March 2019. The tribunal recorded that he had been suspended on 8 October 2014, had not returned to work, had remained on full pay, and had not taken any holiday. It also recorded that the respondent made two holiday-pay payments after termination, paying £1,172.74 gross on 20 May 2021 and £5,782.05 gross on 21 June 2021.

On the WTR jurisdiction issue, the tribunal held that time under regulation 30 runs from the date on which the alleged payment should have been made. It rejected the respondent's submission that time ran from each earlier leave year or from the termination date itself. The tribunal held that the relevant date was 20 May 2021, when the respondent made the first payment that the claimant said was only part of what was due. The claim was therefore in time and could proceed to a final hearing. It rejected 7 May 2021 because no payment was made on that date, and rejected 21 June 2021 because the limitation period had already started.

The tribunal dismissed the Employment Rights Act 1996 unlawful deduction claim for lack of jurisdiction. It held that, as a former police constable, the claimant was not a worker within s.230 ERA 1996 and that it would be contra legem to read into the statute the additional words the claimant proposed. The tribunal considered the effect of EU law and the Marleasing principle, but concluded that the Working Time Regulations already provided an effective and equivalent enforcement mechanism for annual leave rights, so the domestic exclusion in Part II ERA was not displaced. It therefore did not need to decide the remaining limitation and ultra vires issues, although it made observations that the carry-over period for sickness cases was ordinarily 18 months and that the respondent's payments appeared likely to satisfy any such holiday entitlement.

No tribunal award was made at this stage because the case was a preliminary hearing only. The only operative result was that the WTR claim was allowed to continue and the ERA claim was dismissed for lack of jurisdiction.