Industrial & Commercial Maintenance Ltd v Briffa EAT/0215/08 & EAT/0216/08

working time | holiday | notice periods

The Employment Appeal Tribunal (EAT) has held that a contractual term can override the requirement in the Working Time Regulations 1998 (SI 1998/1833) that employers give employees notice of holiday dates that is double the amount of time to be taken.

Mr Briffa's employer gave him one week's notice on 10 August 2007, stating that his employment would end on 17 August 2007. However, it invoked a contractual term that provided that, if an employee is not required to work a notice period, he or she should be regarded as being on holiday during that period. Mr Briffa was not therefore required to work his notice period. He later brought a claim for outstanding holiday pay.

An employment tribunal found that the requirement did not comply with reg.15 of the Working Time Regulations 1998 and that Mr Briffa was entitled to four days' holiday pay. Regulation 15 requires that an employer must give notice of holiday dates that is "double the amount of time to be taken". Mr Briffa should have been given eight days' notice of the four days' holiday that he was being required to take.

The EAT overturned the decision. The tribunal had overlooked the fact that the requirement in reg.15 can be "varied or excluded by a relevant agreement". The contractual term that an employee could be required to take holiday during his or her notice period was a relevant agreement that overrode reg.15.

The EAT went on to stress that the policy behind the Working Time Regulations 1998 is to ensure that workers take sufficient holiday with pay. The employer was entitled to require Mr Briffa to work his week's notice, but instead it gave him the week off. The purpose behind the Working Time Regulations 1998 had been satisfied in this case.

Case transcript of Industrial & Commercial Maintenance Ltd v Briffa (Microsoft Word format, 50K) (on the EAT website)

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