In order to claim holiday pay under Reg 16 (1) of the Working Time Regulations an employee must have already stated an intention to take it.

Fraser v Southwest London St George’s Mental Health Trust [2011] UKEAT 0456_10_0311

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  • To claim holiday pay under WTR Reg 16 (1)the employee must have already asked for it.
  • Employer hadn't argued regarding non-compliance in ET3 or at hearing yet were allowed to bring and win the point.

In order to claim holiday pay under Reg 16 (1) of the Working Time Regulations an employee must have already states an intention to take it. A dismissed employee brought discrimination claims on the grounds of age and disability and also for unpaid statutory holiday pay for two previous years in which she had been absent owing to long-term sickness.

The employment tribunal dismissed the discrimination claims as the Claimant was not in compliance with section 32 (2) of the Employment Act 2002. The claim for holiday pay under Reg 16 (1) of the WTR (Working Time Regulations) was also rejected as the worker had not taken the leave, nor had she given notice of a wish to take annual leave during those years (regulation 15 of the WTR (Working Time Regulations).

Kigass Aero Components Ltd v Brown [2002] ICR 697 followed;
List Design Group Ltd v Catley [2002] ICR 686 and Canada Life Ltd v Gray [2004] ICR 673 not followed;
Stringer v HM Revenue & Customs Commissioners [2009] ICR 932 and Pereda v Madrid Movilidad [2009] IRLR 959 considered;
The claimant could not rectify the failure to give notice using Scally v Southern Health and Social Services Board [1991] ICR 771.

Despite the employers not having argued for non-compliance with section 32 (2) at the tribunal hearing or even in the ET3 they were allowed to argue (and win) this point.

Glasgow City Council v Stefan Cross Claimants (UKEATS/0007/09) followed.
Transcript of the judgement:-   Fraser v Southwest London St George’s Mental Health Trust [2011] UKEAT
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