A chinese medicine store in London has lost its appeal against a Tribunal decision to award an ex-employee £25,000 in unused holiday and meal allowances. The employer, BTRT, had a total award made against them in September 2008 for £39,000 including a claim for unfair dismissal.
The employee worked for BTRT from 2001 to her dismissal in 2008. She had racked up 131 days of unused holidays only taking holiday on four days per year which were bank holidays when the shop was closed! The employer argued that she was not entitled to any holiday except for the last holiday year under the WTR but the ET found the holiday entitlement to be contractual and therefore it could be backdated. Interestingly this was despite the employee not having a s1 statement to that effect. Apparently the EAT were persuaded to leave the Judgment as it stood given the implications of Ainsworth and Stringer which as we reported has recently been decided.
There was also an interesting mitigation arguement as BTRT argued the unfair dismissal award should have been reduced for failure to mitigate. The EAT held that the ET was correct in finding that it would not be reasonable to expect a person like the employee, when bowled over by her unexpected dismissal, to get straight back into the job market. This sounds like an arguement which could be run with most unfair dismissal cases but the Tribunal put this down to the employee’s personal circumstances. These included her shock at being dismissed and the way she was treated, her lack of English and feelings of isolation in London and finally her lack of money for food and to find another job. Make of that what you will!