Holiday leave appeal against Boat House dismissed

Monday 05 September 2022

The Royal Court has declined an “invitation” to develop local employment law, despite calls from a former Boat House employee who had been denied payment in lieu of the holiday he was not able to take whilst off sick.

Bartosz Banaszkiewicz worked for the St. Aubin based restaurant from 26 June 2017 to his resignation on 10 June 2020.

Between 20 January to 26 October 2019, he had been on sick leave. According to the documents filed by Mr Banaszkiewicz, Mill Holdings (St Brelade) Limited, which trades as “The Boat House”, considered his full-time contract ended in January 2019 following an injury, and he then returned to work on a zero-hours contract.

In March 2021, the Employment Tribunal heard claims for unfair dismissal, redundancy pay and damages for failure to give notice, all of which were dismissed. Mr Banaszkiewicz was then given the opportunity to lodge further claims regarding unpaid wages and holiday pay, which were also dismissed. Mr Banaszkiewicz was however given leave to apply regarding payment in lieu of the statutory annual leave entitlement he had accrued during his sick period.

Pictured: The Employment Tribunal had previously dismissed various claims against the Boat House from Mr Banaszkiewicz.

He was initially unrepresented, although he received the assistance of English Solicitor Nick Le Cornu to put forward his claim, so Advocate Victoria Milner was appointed as Amicus Curiae.

Mr Banaszkiewicz argued the Court had “erred in law” when concluding he was not entitled to carry over the statutory leave he accrued whilst he was off-sick because he could have taken it between October 2019 and the end of that year, after he returned to work.

His claim was based on what he described as the Court’s failure to consider the “substantial jurisprudence” which had been developed by the European Court of Justice and the Courts of England and Wales in the implementation of the Working Time Directive 2003/88/EC, all of which focused whether or not unused leave could be carried over and trigger an obligation to make a payment in lieu on termination of employment.

In the original judgment, the Court concluded the employee hadn’t attempted to take his outstanding leave or carry it over. It also noted he hadn’t shown his employer had refused to permit him to do so.

“Accordingly, the Claimant forfeited his entitlement to annual leave accrued during the Sick Period and the Sick Period Claim fails,” they wrote.

Pictured: The Boat House is based in St. Aubin.

However, leave to apply was granted after the Court considered there was no evidence the Boat House had taken any steps to “facilitate the timely taking of the leave”, or drawn Mr Banaszkiewicz’s attention to “the risk of losing any untaken leave” if he did not it before the end of that year.

The former Boat House employee argued his employer neither recognised he had accumulated any leave entitlement whilst off sick nor made any effort to encourage him to take any time off.

He added the Boat House had not shown it had exercised “all due diligence” in order to enable him to take the paid annual leave to which he was entitled, which meant he hadn’t lost his annual leave and it may be carried forward. This in turn meant he would have been entitled to a payment in lieu at the end of his employment.

Advocate Milner argued Mr Banaszkiewicz had not explained why he believed “a failure to follow developments in English Law” constituted an error of Law by the Tribunal, noting there were differences between the regulations cited and Jersey law.

“The decisions of the English Employment Tribunal, let alone the decisions of the European Court, are not automatically adopted into the Law of Jersey and, so it is argued, the Tribunal must have primarily regard to settled judgments of the Court but is not obliged to follow European Law or indeed the Law of England and Wales,” the appeal judgment noted.

Pictured: The Bailiff, Sir Timothy Le Cocq was sitting as Single Judge.

The Bailiff, Sir Timothy Le Cocq, who was sitting as Single Judge, eventually considered it was “impossible” to conclude the Tribunal had misunderstood or misapplied the law.

“What it did not do was to avail itself at an opportunity to develop the Law and it might be that had it chosen to do so, which it did not, the matter might be before this Court to consider whether that development was appropriate or justifiable in these circumstances,” he wrote.

He added that whilst the Court could develop Jersey’s law “in light of greater clarification provided by judgments or sources of law which are of a highly persuasive nature”, the law of the European Court of Justice in employment matters was no such law.

“I do not feel able to accept any invitation to develop the Law of Jersey in that way,” the Bailiff wrote. “That is a matter for the legislature having considered all matters to clarify or develop the Law should it see fit to do so.”

He dismissed Mr Banaszkiewicz’s appeal.