Rolled up Holiday pay 3

For all those who thought the saga had ended with Marshalls Clay v Caulfield (see bulletin dated 4th August 2003, reproduced below), think again!

An employment tribunal sitting in Leeds, in the case of Robinson-Steele v RF Retail Services Ltd, has decided it does not want to follow the EAT's decision in Marshalls Clay to the effect that rolled-up holiday pay can be lawful. So it has referred the issue directly to the ECJ.

The two questions referred are:

1. Is article 7 of Council Directive 93/104/EC consistent with provisions of national law which allow pay for annual leave to be included in a worker's hourly remuneration and paid as part of remuneration for working time but not paid in respect of a period of leave actually taken by the worker?

2. Does article 7.2 preclude the national tribunal from giving credit to an employer for such payments when it seeks to give to the applicant an effective remedy according to powers contained in the national regulations?

I understand the employer (who wanted the tribunal to follow Marshalls Clay) is considering an appeal.

Counsel for the employer, Nick Siddall from Kings Chambers, is willing to distribute copies of the decision. He can be contacted on nsiddall@kingschambers.com