Mr A Alston and others v The Doctors Laboratory Ltd: 2200353/2018 and others
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 2020 |
| Citation | 2200353/2018 and others |
| Published date | 25 February 2020 |
| Court | Employment Tribunal |
| Subject Matter | Working Time Regulations |
Case Number: 2200353/2018
and others
1
THE EMPLOYMENT TRIBUNAL
SITTING AT: LONDON CENTRAL
BEFORE: EMPLOYMENT JUDGE ELLIOTT
BETWEEN:
Mr A Alston and 48 others
Claimants
AND
The Doctors Laboratory Ltd
Respondent
ON: 3, 4 and 5 February 2020
Appearances:
For 45 Claimants: Dr J Moyer-Lee, General Secretary IWUGB
Claimants: Mr E Anselmo, Mr B Bonnici, Mr A Cordeiro and
Mr F De Macedo were not represented and did
not appear
For the Respondent: Mr M Purchase, counsel
RESERVED JUDGMENT ON PRELIMINARY HEARING
The Judgment of the Tribunal is that:
(1) By consent, where claimants have not taken annual leave, they carry
over the right to do so from year to year.
(2) Where claimants have taken leave, the right to carry over is subject to
findings as to why the leave was not taken and the limitation provisions.
(3) Days upon which the claimants did not work are relevant and to be taken
into account in considering any declaration or remedy.
(4) There is no entitlement to a punitive award.
(5) The applicable limitation principles are those contained in the Working
Time Regulations 1998 and the Employment Rights Act 1996.
REASONS
1. By a number of claim forms, the claimants bring claims which are reflected
in the issues set out below.
Case Number: 2200353/2018
and others
2
2. This preliminary hearing was originally listed to be heard from 25-27 June
2019. It was cancelled on the instructions of Acting Regional Judge Wade
and the parties were informed of this by letter dated 24 June 2019.
The issues
3. The case concerns the principles to be adopted for the payment of annual
leave entitlement for the claimants. The issues were identified at a
preliminary hearing on 30 January 2019 before Employment Judge Wade
based on an agreed list of issues attached to her Order of that date. The
issues had since been refined and narrowed into an updated list of issues
presented at this hearing as follows:
4. For the purposes of this hearing the claimants accept that the issues set
out below relate to the entitlement to four weeks of paid annual leave,
under Article 7(1) W orking Time Directive (‘WTD’), Article 31(2) of the
Charter of Fundamental Rights of the European Union (‘CFR’), and/or
Regulation 13 W orking Time Regulations 1998 (‘WTR’), and not to
additional leave under Regulation 13A WTR. However, the claimants
reserve their position in the event of an appeal as does the respondent.
5. Applying the decision of the Court of Justice of the European Union
(‘CJEU’) in King v Sash Window Workshop Ltd 2018 ICR 693 did any
rights to paid annual leave, which each of the claimants had in principle,
carry over from year to year because, prior to 1 January 2018, the
respondent did not provide them with any paid annual leave? The
claimants say ‘yes’; the respondent says that this will be a matter for
evidence as to why, if they did not take annual leave, any given claimant
did not take leave where that is the case.
6. Is it irrelevant that, in the period in respect of which the claims are made,
each of the claimants had days on which they did not work for the
respondent or at all?
a. The claimants say that it is irrelevant: unpaid non-working days
cannot be regarded as days of annual leave for present purposes
and therefore any decisions as to limitation, liability or remedy to be
awarded to the claimants in due course must be decided on the
basis that none of them took any annual leave before 1 January
2018.
b. The respondent says that it is not irrelevant: all or some of the
claimants’ non-working days are capable of being annual leave
and/or the fact that they were taken is potentially relevant to liability
and remedy more generally and may be relevant to limitation. They
say that what time off was taken, why and/or in what circumstances,
should be a matter for evidence in due course and the Tribunal
should reach its decisions as to what leave was or was not taken in
the light of this evidence.
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