This case questioned whether employees who had exhausted their entitlement to contractual and statutory sick pay could claim holiday pay despite their continued absence from work. This area is governed by Regulation 13 of the Working Time Regulations which allows a worker to have four weeks’ annual leave in each leave year. The Employment Appeal Tribunal considered itself to be bound by a previous decision in this area in the case of Kigass Aero Components Limited –v- Brown [2002]. In this case the Employment Appeal Tribunal ruled that such employees could claim up to four weeks’ holiday pay per year under the Working Time Regulations. However, the Employment Appeal Tribunal granted the Inland Revenue the right to appeal so that this issue might be considered for the first time by the Court of Appeal.
The Court of Appeal agreed with the Inland Revenue’s contention that the Kigass decision was fatally flawed by their emphasis on the definition of the word ‘worker’ in regulation 13 rather than on the undefined concept of leave. The Court further agreed that it would be contrary to all ordinary usage for a worker who is off work for a year or more as a result of a serious illness to say that during some arbitrarily chosen part of that period he is taking ‘leave’. Furthermore, the Court concurred that the very purpose of the regulations are to provide minimum health and safety standards of working time. The regulations provide for the release from the pressures of daily work and an employee who is not required to work would gain no benefit to his health by taking leave and would rather gain an unfair windfall.