Employment Appeal Tribunal Rules it is the Employer’s Responsibility to Ensure Employees Take Annual Leave

Due to effects of the Covid-19 pandemic, many employers found it difficult to ensure that their employees could take their statutory holiday entitlement as usual. In consideration of this, the Working Time Regulations 1998 (“WTR”) were amended between 26 March 2020 and 31 December 2023 to provide for employees being entitled to carry over unused holiday entitlement if “in any leave year it was not reasonably practicable” for them to use it “as a result of the effects of coronavirus”.

In the case of Mr B Knight v Off Broadway Limited, the Employment Appeal Tribunal (“EAT”) disagreed with the Employment Tribunal (“ET”) in their decision to dismiss the Claimant’s claim in respect of unpaid holiday which the Claimant claimed he was unable to take in the relevant holiday year due to the Covid-19 pandemic. The Respondent had submitted that as Mr Knight was the manager of the bar and attended to rotas, he was “the master of his own timetable” and was free to take annual leave as and when he pleased and therefore had been given reasonable opportunity to take his holiday entitlement. The ET agreed with the Respondent and therefore dismissed the Claimant’s claim for holiday pay under these circumstances.

The EAT held that the ET had incorrectly applied the law in their judgement in that although Mr Knight was able to take his holiday entitlement when he pleased, the ET had failed to consider whether the Respondent had actively encouraged Mr Knight to take his holiday entitlement. Further, the ET had failed to consider whether the Respondent had informed Mr Knight of his unused holiday entitlement within a reasonable timeframe and advised him that he would lose this if he did not take it in the holiday year.

This highlights the important point that the burden of proof in these types of claims is on the employer to be able to evidence that the Claimant not only had reasonable opportunity to take their unused holiday entitlement in any given holiday year, but also that the Respondent has actively and where necessary, formally encouraged the Claimant to use take their holiday entitlement and inform them of the consequences of losing their holiday entitlement if they do not take it during the holiday year. This point is applicable in cases which are related to coronavirus or any other reasonable circumstances under which an employee may not be able to take their holiday entitlement during any given holiday year.