EAT rules on pay and holiday pay arrears

The Employment Appeal Tribunal (EAT) has dismissed an individual’s appeal for pay and holiday pay arrears for his time working as an on-call night worker.


In the case of Shannon vs Rampersad and Rampersad T/A Clifton House, Mr Shannon was required to be onsite at the Clifton House residential care home between 10pm and 7am and to respond to requests of assistance from the night care worker during this time.

The claimant was able to sleep between those hours and, in practice, he was rarely asked to assist the night worker.

Shannon was provided with free accommodation in the care home and a small salary beginning at £50 a week at the start of his employment in May 1993, rising to £90 a week at the time of his dismissal, effective 1 January 2014.

In the original case, the claimant argued that he should be paid in arrears for the full nightly hours spent on call since the national minimum wage came into effect in April 1999. The claim was for £239,490.

The Employment Tribunal (ET) ruled that he was not working through the night shift and should therefore only be paid for the times at which he was called upon to assist the night care worker. His payment already amounted to the national minimum wage for those periods so the claim was dismissed.

The second aspect of the case related to holiday pay in arrears. The claimant did not take holiday after the Working Time Regulations were introduced in October 1998 so the question was whether he could carry forward paid leave entitlement, which amounted to around £15,000.

The ET rejected this on the basis that the claimant could have requested leave but opted not to do so, thus could not carry forward past entitlement to pay in lieu of holiday pay.

The claimant appealed both decisions and a tribunal was held on 31 July 2015.

In a judgement delivered on 24 September, the EAT dismissed the appeal on both counts.

The EAT agreed with the ET’s conclusion that ‘presence does not of itself necessarily entitle a worker to the national minimum wage for the whole shift’, finding that the ET’s conclusion ‘was a wholly permissible one, correctly applying the law to the primary facts found’.

The EAT also agreed with the ET’s decision regarding the claimant’s appeal for holiday pay arrears.

In the ET judgement, judge Peter Clark stated: “Quite simply, the facts do not support the proposition that the claimant was unable or unwilling to take leave due to reasons beyond his control.”