Member J McElwee Tribunal Member G McKay Ms C Docherty v Stuart Gibson Cleaning Services Ltd — 2024

The claimant brought claims for disability discrimination and unpaid holiday pay after the termination of her employment as a cleaner on 14 July 2023. At the start of the hearing she withdrew the disability discrimination claim, which was dismissed. The only issue for determination was whether holiday pay remained due on termination, including whether annual leave could be carried forward between leave years.

The tribunal found the respondent's evidence unreliable, largely because it had no proper system for deciding or recording annual leave, no issued contract of employment, and no written particulars setting out any term about carry over. It preferred the claimant's evidence where there was conflict. For the leave year from 16 June 2022 to 31 March 2023, it found that the claimant had taken 11 days' leave against an entitlement of 18 days, leaving 7 days outstanding. It rejected the respondent's late attempt to rely on different single-day leave dates and accepted that one day had been taken on the instruction of Mr Gibson for a hospital appointment.

On carry over, the tribunal applied Smith v Pimlico Plumbers and the Working Time Regulations 1998. It held that the respondent had not told the claimant that untaken leave would be lost, had not provided a booking system or policy, and had not shown that it encouraged her to take leave and informed her of the consequences of failing to do so. The claimant was therefore entitled to carry forward the 7 outstanding days into the next leave year.

For the leave year from 1 April 2023 to termination, the tribunal found that the claimant took no annual leave and accrued 8 days. It accepted that 27 and 28 April 2023 were sick leave, not annual leave, following the HMRC dispute. The total outstanding entitlement was therefore 15 days, or 75 hours, and the tribunal calculated payment at £10.42 per hour, producing an award of £781.50.