Mr El Bhaireien v Lower Richmond Properties Ltd As agent for Abbeybay Properties Ltd — 2021

The claimant presented his claim on 24 August 2020 after early conciliation. He said in the claim form that his employment had not ended, that it began on 3 February 2018, and that he had an accident on 23 February 2018. The claim before the tribunal was for holiday pay for the period he had been absent from work, less any holiday pay already paid.

At the hearing, the claimant referred to having received a P45 showing a leaving date of 1 April 2020, but he produced only Part 3 and did not provide the full document. The respondent denied sending a P45 and maintained that the claimant remained employed. Because the full P45 was not produced and the parties’ positions were otherwise consistent with ongoing employment, the tribunal found that the claimant’s employment had not terminated and that he remained employed.

On that basis, the tribunal held that the claim for holiday pay failed. It accepted that workers on long-term sickness absence remain entitled to accrue paid annual leave under the Working Time Directive, but said that a payment in lieu of unused leave arises only if employment is terminated. As the tribunal found there had been no termination, there was no right to a payment in lieu and the claim was dismissed. The tribunal also recorded that the claimant’s entitlement to holiday pay continued to accrue during employment.