Over 25 years of employment, Mossadek Ageli accumulated over 1,500 days’ worth of holiday. He took only 496 days, and was paid in lieu for 195 more. He was refused any further holiday because his company was short staffed, and agreed to be paid for his allotted days instead. When he was purportedly dismissed for gross misconduct, he claimed payment for the remaining 827 days.
In ordinary circumstances, a tribunal would not be in a position to entertain a holiday pay claim for a period more than two years before the date when the claim was presented. How did Mr Ageli manage to take his claim back so much further?
The answer lies in contract. When he first realised – in 1998 – that he was not going to be allowed to take holiday, he agreed to be paid for the accruing days instead, and kept a careful record of the position, relying upon it as a retirement fund in all but name. A new board of directors, however, did not see the need to honour that arrangement, and reduced his role before dismissing him.
Mr Ageli’s employer Sabtina, a Libyan investment company dealing in real estate, was up against legal authority: if an employee had a contract term covering holiday rights which was more favourable than statutory rights, the contract term would prevail. Was there scope for Sabtina to argue that this was a mere promise without binding force?
Evidently not. The tribunal was influenced by a number of factors. There were regular documented refusals of holiday. These served to acknowledge that the holiday would roll over. There were two substantial payments for holiday in lieu. Mr Ageli would hardly have refrained from further payment in lieu claims if there had been no agreement about continuous and cumulative rolling over. He also made a credible claim for the value of the accrued holiday as soon as he was dismissed – it was not a mere speculative afterthought.
Two further factors came into play. Firstly, Mr Ageli framed his claim under statute – specifically, the bar on unauthorised deduction from wages under s.13 Employment Rights Act 1996 – so it was not caught by the £25,000 cap on ordinary contract based claims. Secondly, in the absence of any express “use it or lose it” instruction since 1998, none of the accrued holiday was lost, and all of it was deemed to have been rolled over. He ended up with a gross award of £391,942 for the accrued holiday.
From time to time, we hear of cases where employees have been too dedicated – or too frightened – to take their holiday entitlement, and have failed to persuade a tribunal to award them the value of the lost holiday by turning the clock back. Mr Ageli was at least wise enough to persist in asking and in turn to keep careful records.
Are you faced with an unexpected argument about accrued holiday? Or are you looking to make one? A second opinion may help. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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