Thread by @JasonBraier

Brilliantly explained by @MichaelFordQC. Truly seismic implications and a landmark judgment. Pretty confident that I can't do any better than this. Here's a link to the judgment: bailii.org/ew/cases/EWCA/…
#ukemplaw

https://twitter.com/OldSqChambers/status/1488469671976353796

And not only does Michael seek to use his article to educate us on holiday pay law, but also on cycling lingo. For the uninitiated, a palmares is a list of races a cyclist has won!

Below I seek simply to identify some of the key parts of the judgment, as so eloquently already explained in Michael's article.

1st, the 2 ways parties can rely on the CJEU position on the rights under the WTD where domestic legislation doesn't provide the same rights:

2nd, confirmation of the ET finding that Mr Smith's case wasn't pleaded to rely on Reg 14 WTR (compensation re annual leave untaken on termination). However here, thanks to the genius of Mr Smith's appellate counsel, that wasn't fatal to his claim.

A quick nod from me in this part of the judgment to the CA's reliance on one of my favourite quotable EAT excerpts - that of Langstaff P in Chandhok v Tirkey on the importance of looking for the case in the pleadings (though see also Cox v Adecco weakening this with LiPs):

3rd, the Richter scale needle starts to shake when the CA analyses the ratio in King, agreeing with Mr Smith as to its broadness in providing for a composite legal entitlement to paid annual leave rather than 2 rights: to annual leave & to being paid for it.

Without the reassurance that the leave taken will be paid for, the worker can't have the rest and relaxation consistent with the CJEU construction of the purpose for which the right to annual leave is provided.

4th, as a consequence, & applying Shimizu, employers are required to have a system enabling paid leave to be taken. Those refusing to remunerate for leave fail to put that system in place and thus infringe the right to paid annual leave. The burden is well & truly on the employer

Thus even though Mr Smith didn't bring a claim based on Reg 14 WTR in respect of leave untaken as at termination, he was still able to rely on Art 7 WTD in respect of the denial of the right to 4 weeks paid annual leave whilst a worker. That was consistent with his pleaded case.

5th, the 2nd shift of the needle, albeit obiter. Bear Scotland is wrong on a series of deductions under s.23 ERA being broken by a 3-month gap. Agnew is to be preferred. A series has no such temporal restriction.

So, a huge win for Mr Smith, now entitled to 4 weeks' pay for each year he worked for Pimlico Plumbers, irrespective of whether he did or didn't take unpaid leave. A cold sweat for many gig economy 'employers' &, I'd suspect, a likely 2nd trip to the Supreme Court in 2023.