ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) Judgment of the Employment Tribunal in Case No: 4104184/2023 Issued Following Final Hearing Heard on the Cloud Based Video Platform on th March 2023 at am Employment Judge J G d’Inverno George Rafferty v Challenge-trg Recruitment Limited — 2023

George Rafferty brought a Working Time Regulations claim against Challenge-TRG Recruitment Limited seeking payment in lieu of 12 days' paid annual leave said to have accrued in the holiday year 4 July 2022 to 3 July 2023 and to have been outstanding when his employment transferred from Pertemps Recruitment Partnership Limited to the respondent on 9 July 2023. The tribunal found that he worked under terms providing 31 days' annual leave, that his leave year ran from 4 July to 3 July, and that clause 9.4 required leave to be taken in the year it accrued with no carry-forward, mirroring regulation 13.9(a) of the Working Time Regulations 1998. It rejected the claimant's submission that the contractual terms were void for want of a signed individual contract and also rejected the attempt to recast the case as an unlawful deduction from wages claim.

The tribunal could not make a reliable finding as to how many days of leave the claimant had taken by 3 July 2023. His evidence on that point was inconsistent, and the holiday records he mentioned were not before the tribunal. It accepted that Pertemps made a payment of £282.89 described as 'LEAVERWTRPAY' on or around 14 July 2023, but the evidence did not allow the tribunal to determine whether that payment fully or partly discharged any pre-transfer holiday liability.

Any untaken leave from the 2022/2023 leave year fell away on 4 July 2023 and did not carry forward into the new leave year. On transfer, the only entitlement that could potentially have passed to the respondent was the proportionate accrual for 4 to 8 July 2023, and the tribunal found that the respondent separately paid £52.84 on 23 February 2024 for that period. It also found that the respondent paid £229 on 9 February 2024 for the accrued leave between 9 July and 3 August 2023, so no unpaid balance remained and the claim was dismissed; the respondent's jurisdiction point about the ET1 date was not determined because dismissal on the merits made it unnecessary.