Canada Life Ltd v Gray & another, EAT/657/03

Backdated holidays: Farrar and Gray worked as self-employed consultants under contracts which did not provide for holiday pay. When their contracts ended, both claimed unpaid holiday pay dating back to the introduction of the Working Time Regulations 1998 (WTR) in October 1998. They claimed that in not making any holiday payments, Canada Life had made unlawful deductions from their wages in breach of the Employment Rights Act 1996 (ERA).

Unlike claims brought under WTR, such claims can be backdated to the date of original breach.

The tribunal found that they were ‘workers’ for the purposes of the WTR, and upheld their claims awarding them £20,000 and £30,000 respectively. Canada Life appealed unsuccessfully, arguing that the pay should not be back-dated but in any event, they had not taken holiday and therefore should not be paid.

The EAT considered the apparent conflict between two existing EAT decisions: Kigass, involving a worker on long-term sick leave who continued to be entitled to leave, and List Design, where a right to holiday pay was limited to the amount of leave entitlement, rather than the amount taken. It resolved this issue in concluding that Kigass deals with the position under the WTR during employment, whereas List Design and this particular case were concerned with the position once employment has ended.

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