Jamie Cockfield, instructed by Trowers & Hamlins LLP, was successful for the Trustee in Bankruptcy in the case of James Main v SpaDental Limited in the Bristol Employment Tribunal (Case Number: 1400999/2019).

The Claimant, Mr Main, issued proceedings in March 2019 in which he claimed holiday pay pursuant to the Employment Rights Act 1996 and Regulation 16(1) of the Working Time Regulations 1998.

In a judgment in May 2022, the Tribunal found that the Claimant was a worker for the period he worked for the Respondent, SpaDental Limited, as a Dentist. The claim was listed for a remedy hearing in March 2023, and the Trustee in Bankruptcy applied to the Tribunal to be joined to the proceedings on the grounds that the Claimant had been made bankrupt in June 2017, and was discharged in June 2018. The period of bankruptcy fell within the Claimant’s period of claim. Employment Judge Gibb agreed that the Trustee had a legitimate interest in the claim and joined the Trustee as a party. The Claimant was successful and the Respondent was ordered to pay £83,573.78 in unpaid holiday pay. However, this sum was ordered to be paid to the Trustee rather than the Claimant.

Mr Cockfield for the Trustee argued that the claim was proprietary in nature and automatically vests in the Trustee. It was submitted that it was not one of the exceptions to the claims which will vest in the bankruptcy estate, explained by Hoffman LJ in Heath v Tang [1993] 1 W.L.R. 1421 at A 1423 as those cases in which: “the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or character, and without immediate reference to his rights of property.” (Beckham v Drake (1849) 2 HL Cas 579 at 604, per Erle J.)

EJ Gibb agreed that the Claimant’s compensation for unpaid holiday was recompense based on his rate of pay, and there was no element of compensation which fell within the categories set out in Heath v Tang. Damages awarded under the Working Time Regulations are different, for example, to those awarded for slander, and in Santos Gomes v Higher Level Care Ltd [2018] EWCA Civ 418 the Court of Appeal concluded that a complaint under Regulation 30(4) (for failure to allow sufficient rest breaks) was akin to a breach of contract claim and the claimant was not entitled to compensation for injury to feelings. The judge reached the same conclusion in this case.

Read the full judgment here.