Holiday pay stayed

Case 4: The facts

Mr Berta, a restaurant waiter, claimed holiday pay for a holiday taken shortly before his employment was terminated. He also claimed holiday pay for a holiday taken in the previous holiday year.

The latter claim was out of time under regulation 30 of the Working Time Regulations 1998, so he claimed it as an unlawful deduction under Part II of the Employment Rights Act 1996, which operates time limits differently.

In Commissioners of Inland Revenue v Ainsworth [2005] IRLR 465, the Court of Appeal held that such a claim could not be made. The tribunal here refused to stay the proceedings because it believed that, unlike the other disputed issue in Ainsworth (whether holiday pay is payable during sick leave), this issue had not been appealed to the House of Lords. Berta appealed.

The ruling

Berta’s representative was able to find out from the employees’ representative in Ainsworth that the issue whether holiday pay can be claimed under Part II is also to be decided by the House of Lords. This was not clear from the law reports.

The House of Lords is awaiting the decision of the European Court of Justice on the sick leave issue before going ahead with the appeal on both issues. Therefore Berta’s claim should be stayed until the outcome.