Mr. Iosifescu v River Island Clothing Co Limited — 2021

The claimant’s case concerned holiday taken, or treated as taken, during furlough. His original complaint had two parts: first, that holiday during furlough should have been paid at 100% rather than furlough pay, which was no longer pursued after the respondent made a top-up payment; and second, that the respondent had deducted from his annual leave entitlement holiday accrued during furlough without proper notice or payment. The tribunal treated the second part as potentially arising under regulation 30(1)(a) or 30(1)(b) of the Working Time Regulations 1998.

The tribunal found that the respondent’s 29 April 2020 email and accompanying material did not amount to a valid regulation 15(3) notice because it did not specify the days on which leave was to be taken. It also found there was no relevant agreement varying or excluding the regulation 15(3) notice requirements. On that basis, the leave accrued during furlough was not required to be taken and should still have formed part of the claimant’s holiday entitlement when he returned to work.

However, the claim under regulation 30(1)(a) failed because there was no evidence that the claimant had made any specific request to take leave beyond the reduced entitlement, so there was no refusal by the respondent to permit him to exercise a right under regulation 13 or 13A. The tribunal also dismissed the unlawful deductions claim because the claimant had not taken the leave and was not entitled to be paid in lieu while his employment continued. The tribunal noted, without needing to decide the point, that any regulation 13 leave wrongly deducted during furlough would have been capable of carrying over, whereas regulation 13A leave would have been lost at the end of the holiday year.

The tribunal did not need to determine the time limit issues because the claims failed on the merits. It also recorded that the respondent had paid the claimant on 14 April 2021 a sum representing 20% of pay for 54.7 hours of annual leave accrued during furlough, calculated on a broad-brush basis for furloughed employees.