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Goodman Derrick acts in back-dated commission based Holiday Pay Claim

View profile for Clare Gilroy-Scott
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Clare Gilroy-Scott, a senior solicitor in the Employment Department, represents Mr Conley King in his claim against The Sash Window Workshop (TSWW) for back-dated holiday pay from 1999 up to  the termination of his contract in 2012.

On 4 November 2014 the case was heard in the Employment Appeal Tribunal (EAT) immediately after the handing down of the landmark judgement on holiday pay in Bear Scotland Ltd & Others v David Fulton & Others.


Mr King, a worker who was paid on a commission-only basis, had been unable to take paid holiday throughout his engagement with TSWW.

He won his claim against TSWW in the Employment Tribunal (ET) for back-dated holiday pay.  The ET awarded him holiday pay from 1999 to the date of termination, for the days which he took as unpaid leave, as well as for the holiday he did not take.

Mr King was also successful in his claim for age discrimination and was awarded damages including for injury to feelings arising from the discriminatory termination of his contract on grounds of age.


TSWW appealed to the EAT against the holiday pay awarded by the ET for days which Mr King did not take in the years prior to his final year of the engagement, going back to 1999, being leave entitlement which Mr King did not take because he would not be paid.

Mr King resisted the appeal and also cross-appealed on two grounds:

  1. That the ET’s approach to making an award for injury to feelings was wrong because it failed to consider the effect of the discriminatory termination of contract on Mr King (particularly on his health) and instead focussed on the irrelevant issue of Mr King being perfectly content with what he believed to be his self-employed status.
  2. That the ET failed to apply a 10% uplift to Mr King’s injury to feelings award in accordance with the Court of Appeal decision in Simmons & Castle [2013] 1 WLR 1239 and the EAT in Cadogan Hotel Partners Ltd v Ozog UKEAT/0001/14.

The EAT considered the ground-breaking decision regarding holiday pay in Bear Scotland Ltd & Others v David Fulton & Others; Hertel (UK) Ltd v K Woods & Others; and Amec Group Ltd v Law & Others handed down that morning and invited the parties to comment on any relevant aspects of that judgment.

The EAT  also considered  the decisions in Canada Life v Gray [2004] ICR 673, Revenue & Customs Commissioners v Stringer [2009] ICR 985, Fraser v Southwest London St George’s Mental Health Trust [2012] ICR 403, NHS Leeds v Larner [2012] ICR 1389, Sood Enterprises v Healy [2013] ICR 1361, Lock v British Gas Trading Ltd Case C-539/12 [2014] IRLR 648 and Bollacke v K and K Klaas & Kock BV & Co KG C-118/13[2014] ICR 828, amongst others.

James Williams of Henderson Chambers was instructed by Goodman Derrick to appear before the EAT on behalf of Mr King.

Judgment has been reserved.