E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4106810/2024 (V)5 Held on January 2025 Employment Judge J M Hendry Mr L A Donaldson v Represented by, Mrs L Donaldson, Mother The Nail & Beauty Zone Ltd — 2025

The claimant worked for The Nail & Beauty Zone Ltd as a Spa/Massage Therapist from 2 October 2023 until his employment ended on 14 June 2024. He did not attend the hearing; his mother, Mrs Lynsey Donaldson, gave evidence on his behalf. The tribunal accepted that he suffered a non-epileptic seizure at work on 2 January 2024, that he was certified unfit for work across the periods listed in the reasons, and that his university thesis extension and the fit notes corroborated his ill-health from January until termination.

The respondent relied on its holiday policy, said not all of the absence was certificated, and argued that the claimant could have taken holiday during the period of sickness. The tribunal found that the respondent had not asked Occupational Health for an assessment, had not challenged the fit notes or sought further information, and had not tried to persuade him to take leave. It held that the claimant could not be forced to take holiday while ill and that, given the nature of his condition and the uncertainty surrounding diagnosis and treatment, it would have been unwise for him to take a traditional holiday.

Applying section 13 of the Working Time Regulations 1998 and the authorities in Stringer, Larner and Plumb, the tribunal held that the claimant accrued and retained entitlement to paid annual leave during sickness absence. The parties accepted that the holiday pay at issue was 8.5 days at £10.42 per hour, and the tribunal calculated the amount due as £708.56. It found that the respondent had unlawfully deducted wages to that extent. The tribunal also noted that it had no jurisdiction to award unpaid statutory sick pay, and that if the sum is paid net of tax the obligation is extinguished provided the claimant receives a payslip vouching the deductions.