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Appeal dismissed for backdated holiday pay

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Mr G Smith v Pimlico Plumbers, Gary Smith, an engineer who claimed he was owed holiday pay by Pimlico Plumbers, after the Supreme Court ruled that he was a worker and not self-employed, has been unsuccessful in his latest claim for backdated payments.

It was accepted that he had a disability by reason of a heart condition and, in 2011, he requested permission to work a three-day week for health reasons. When Pimlico Plumbers suspended him and required him to return equipment and a van, he regarded this as a fundamental breach entitling him to terminate the contract.

He then brought a claim for disability discrimination in relation to his alleged dismissal, but the ET concluded that Smith had not been constructively dismissed. He then appealed on the grounds that the ET had erred (1) by treating the termination of employment as an unfair constructive dismissal pursuant to section 95(1)(c) of the Employment Rights Act 1996 rather than a discriminatory dismissal pursuant to section 39(7)(b) of the Equality Act 2010, (2) by failing to consider whether he was entitled to terminate the employment because of the Pimlico Plumber’s conduct, and (3) in its analysis on the application of justification; at the EAT hearing itself, the grounds were amended.

The EAT refused permission to amend the grounds of appeal; whilst Smith lost the right to pursue his appeal, it was a right lost in respect of an entirely different appeal from that for which he had obtained permission. Accordingly, the appeal against the dismissal of the disability discrimination claim would be dismissed.

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