No "inalienable" right to holidays, EAT rules

Workers can lose their holidays if employers put in place the 'proper opportunity and mechanism' for them to be claimed, the EAT has ruled.

The EAT said the mechanism must operate during the whole of the leave year and not be operated in an 'unreasonable, arbitrary or capricious' way.

The case concerned a security guard who had to submit a holiday request form at least four weeks in advance to ensure he was able to take his leave.

Giving judgment in Lyons v Mitie Security (UKEAT/0081/09), Judge Ansell said that at the beginning of March 2008, Mr Lyons had nine days of leave outstanding for which he would be paid if taken as holiday. The holiday year ended on 31 March, and he had no further work from the company scheduled for that month.

'It is not in dispute that on 6 March he sent a fax to his employers requesting payment of those remaining nine days before the end of the current leave year, namely 31 March,' Ansell J said.

Judge Ansell said the next stage appeared to be that on 1 April Mr Lyons found out that the nine days' leave had not been paid and sent a grievance letter on that date.

The security company responded that he had failed to give the necessary notice to claim his nine days leave and that leave could not be carried over to the following holiday year.

Mr Lyons resigned, citing, among other things, failure to pay holiday pay.

Referring to the ECJ decision in Stringer, Judge Ansell said the court clearly envisaged a situation where leave might be lost so long as the 'proper opportunity and mechanism' had been put in place to allow for the entitlement to be claimed.

He went on: 'But it does seem to us that the mechanism, if operated correctly by both employee and employer, could result, as was envisaged in the Stringer case, in the loss of the right at the end of the leave year in respect of leave not taken.'

However, Judge Ansell ruled that the claimant's appeal succeeded in relation to the tribunal's failure to deal with the issue of whether there was a breach of contract in relation to holiday entitlement.

He said a clause in the contract set out three elements which had to be analysed by the tribunal, 'namely why the appellant did not submit his form at least four weeks prior to the commencement of the holiday, the merits of an application for holiday at shorter notice and the respondent's staffing requirements for that period'.

The judge ordered that the case be remitted to a different tribunal for a rehearing.