Chinese medicine shop loses appeal against £25,000 for unused holiday ruling

A Chinese traditional medicine shop has lost its appeal against a tribunal judgment that saw an ex-employee awarded £25,000 in lieu of unused holidays and meal allowances.

Beijing Ton Ren Tang (BTRT), which runs a traditional Chinese medicine shop in London’s Shaftesbury Avenue, appealed a ruling by an employment tribunal in September 2008, which resulted in Ms S P Wang being awarded £14,000 for unfair dismissal, £25,000 in lieu of holiday and meal allowance, plus £769 for two weeks’ pay because of the employer’s failure to give a statement of particulars of employment. In total, Wang was awarded £39,778.

She joined BTRT in 2001 as a traditional Chinese medicine professor and left in January 2008. By then, Wang had racked up 131-and-a-half days of unused holiday and had taken just four days’ holiday each year – on public holidays when the shop was closed.

BTRT’s counsel argued that Wang was not entitled to any pay in lieu of holidays except for the final year of her employment – 2007. But the EAT ruled that Wang had a contractual right to the holiday pay. Her counsel, Harini Iyengar, told Personnel Today that the EAT was also “receptive to the employee’s arguments based upon the wider implications of Ainsworth and Stringer.”

These were two cases where it was ruled that holiday pay accrued during periods of sickness should be paid upon termination of employment.

BTRT also appealed on the grounds that Wang had failed to make any effort to mitigate her losses – for example, by trying to find another job – and that the damages should reflect that.

This was rejected by the tribunal – and upheld by the Employment Appeal Tribunal (EAT) – after it took into account Wang’s personal circumstances, which included:

  • her shock at being dismissed and the way that she was treated
  • her feelings of isolation in London
  • the fact she spoke very little English
  • that she was so short of money she had to borrow £30 from a BTRT director to pay for food
  • that lack of money made it difficult for Wang to find another job.

Wang had also contracted TB in or about June 2008.

The EAT held that the tribunal “correctly directed themselves in finding that it would not be reasonable to expect a person like the claimant (Wang), when suddenly bowled over with the unexpected dismissal, to get herself straight back in the job market.”

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