Mrs S Day v A.N.I. Healthcare Services Ltd — 2022

Mrs S Day worked for A.N.I. Healthcare Services Ltd as a kitchen assistant from 21 November 2014. At the hearing she pursued only her claim for a payment in lieu of accrued but untaken annual leave under regulation 14 of the Working Time Regulations 1998. The tribunal accepted that she worked fixed but varying hours averaging 30 per week, was paid £8.91 per hour, and had not taken any annual leave during 2021 because she was off sick for most of that year and had been suspended for part of it.

The tribunal rejected her case that 96 hours of 2020 leave had carried over into 2021. Kimberley Hall, a senior care worker, had told the claimant that Ms Khelie had said holiday could be carried over, but the tribunal found that Ms Hall had neither actual nor apparent authority to bind the respondent on that issue. It also held that regulation 13(10) of the Working Time Regulations did not assist, because the evidence did not show that it was not reasonably practicable for the claimant to take her 2020 leave during that leave year because of the impact of coronavirus.

For 2021, the tribunal applied the averaging approach under sections 221 to 224 of the Employment Rights Act 1996 and treated the claimant's average working week as 30 hours. On that basis it found that she accrued 112 hours' leave in 2021. It rejected the respondent's figure of 44 hours and rejected the proposed set-off based on the handbook notice clause and alleged agency costs of £1,348.02, because no loss was proved and the clause only applied, if at all, to contractual holiday above the statutory minimum. The tribunal therefore awarded the claimant £997.92 gross, calculated as 112 hours at £8.91 per hour.