England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Thursday, 1st August 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against an order of the Employment Appeal Tribunal, His Honour Judge Peter Clark presiding, dated 15th May 2002. The Employment Appeal Tribunal dismissed the appeal of Mr Andrew Walker from a decision of an Employment Tribunal sitting at Stratford promulgated on 25th September 2001.
2. The dispute is in relation to payment of holiday pay pursuant to the Community Directive, the Employment Rights Act 1996 and the Working Time Regulations 1998. The applicant was an insurance agent with Co-Operative Insurance Society, the proposed respondents, and claims not to have received his entitlement of four payments by way of payment in respect of periods of leave.
3. I would grant permission to appeal in this case. I refused permission on paper, accepting that, on the skeleton argument of Mr Sutton who also appears to make the application orally today, a point of law which was not without force had been raised. I refused permission on paper on the basis that the particular case of this applicant was likely to be defeated by the Employment Tribunal's findings of fact. Mr Sutton has produced a further skeleton argument in which he addresses my concern and he has addressed the court orally this morning. He seeks declaratory relief. He also seeks on behalf of the applicant monetary payment but he accepts that in this case the amount of money involved, if the claim is eventually successful, is likely to be small. This court is always concerned to make practical decisions and is generally reluctant to grant permission where the end result may be, however interesting or important the legal points involved, that the applicant is no better off or little better off. In my judgment, points of some general application and indeed importance arise in this case upon the construction of the instruments I have mentioned and on the consideration of contractual terms in relation to the Regulations and to the statute.
4. I do not propose to set out the issues; they appear from the skeleton argument of Mr Sutton. They involve consideration of the expression "in respect of that period" in Regulation 16 upon the underlying basis of the Regulations, as to their purpose and as to the possibility of payments by way of loss of opportunity to earn further sums during the holiday period.
5. We are told that the major part of the remuneration of agents such as the applicant is by way of procuration of fees and commission rather than basic salary. We have been told that the applicant's union ASDOR have supported the application so far as the Employment Appeal Tribunal. They are not supporting it at present. It appears there are prospects that they may do so in the future. I mention that because the court is concerned about the liability in costs which the applicant will have if permission is granted and if his appeal is dismissed. That is of particular importance in a case where even if his appeal succeeds he is not likely to be much better off. I am satisfied that counsel is mindful of that consideration and he has told the court that the matter is being considered fully and frankly, as I would expect, with the applicant and also with the applicant's union.
6. I add this only because we were told the facts, and not as a result of interrogation of counsel, but he frankly says that in the circumstances of this case whether the permission is taken up may be determined by the attitude of the union.
7. I repeat that points of general interest and importance arise in this case. The Regulations are of recent date. Their implications have not yet been considered fully in the court. I was involved in a decision quite recently on the subject of rolled-up payments which is another aspect of holiday payments giving concern. We are told there is concern about the present state of the law and the basis of the decisions of the tribunals below in this case. I have to say that, having heard Mr Sutton's analysis of those decisions, I respectfully share his view that in some respects the position is obscure and this is a case where I see the advantages of a full consideration of the points in this court followed by a ruling of the court.
8. I regret that this judgment has become somewhat discursive. It reflects my doubts as to whether this is an appropriate case for permission. There are prospects of success though, in my judgment, while real they cannot be said to be very high. That is a factor I consider especially on the question of costs which the applicant and those advising him must keep in the forefront of their thoughts.
9. Nevertheless, on the decision of counsel to pursue the application - notwithstanding the warning given and having regard to the issues upon which I have touched - I have come to the conclusion that it is appropriate to grant permission in this case. I would suggest to counsel, notwithstanding the helpfulness of his skeleton arguments, that he should produce what I would call a skeleton of a skeleton. I am sure the constitution considering the case would be helped by a list of the propositions on which we have been addressed orally. This would enable the members of the court quickly to get to the heart of the case.
10. LORD JUSTICE CHADWICK: I agree that permission should be given in this case. That is not because I consider that an appeal would have a real prospect of success; but because it does seem to me that there is an important point of principle on which authoritative guidance from this court is desirable. That seems to me a sufficiently compelling reason to justify the grant of permission under CPR 52.3 (6) (b).
11. I am conscious that the applicant's trade union - which has supported him before the Employment Tribunal and the Employment Appeal Tribunal - is likely to be well placed to decide whether the point is indeed a point of general importance to its members. If the union decides that the point is of general importance in practice, then it may be expected that it will give effect to that decision by continued support. If it decides that it is a point kof no real importance, it may be that this appeal will progress no further.
(A discussion re the costs and notes of tribunal chairman)
12. LORD JUSTICE PILL: An application is made for the chairman's notes of evidence to be before the court. That arises because of a finding of the Employment Appeal Tribunal at paragraph 17 that there was evidence before the Employment Tribunal as to the basis on which the applicant was paid "which it was open to the Employment Tribunal to accept". The evidence concerned appears in paragraph 11 (x) of the Employment Tribunal's decision where it is recorded:

"Like any job which is essentially commission orientated, Mr Walker's pay reflected the history of his sales record. As a consequence his fortnightly pay reflected a fraction (one-twenty-sixth) of a continually recalculated annual performance bonus."

13. That finding of fact forms a part of the tribunal's reasoning in that they stated at paragraph 24:

" ..... the reality is that Mr Walker is an insurance agent paid commissions on an annualised basis in respect of the servicing and selling of the material customer business."

14. One of the grounds of appeal to the Employment Tribunal and now to this court is that there was no evidence to support the finding that the contract provided for commissions on "an annualised basis". Before the Employment Appeal Tribunal it was accepted in the paragraph to which I have referred that there was evidence which entitled the Employment Tribunal to make that finding. I find that a most surprising conclusion in the circumstances. This was a case where there was a written contract and one would expect the matter to be considered on the basis of that written contract unless there was evidence of a variation of the contract. Neither the Employment Tribunal nor the Employment Appeal Tribunal have given any consideration as to whether the assertion of Mr Riley as to the "annualised basis" was a consensual variation of the contract. The point would in that event appear to be of no relevance. In the absence of any reasoning it could not properly be held - it would seem to me provisionally - that there was a term of the contract to that effect.
15. In those circumstances I would refuse the application for the chairman's notes. Appeals to this court, as appeals to the Employment Appeal Tribunal, are on points of law only and it is rare that chairman's notes are relevant or appropriate. This is not a case, in my judgment, in which the chairman's notes can be helpful in the situation which now exists. If the point were to be raised - albeit it has not been raised below - that there was a variation of the contract which makes Mr Riley's assertion a term of the contract I would follow the force of any application which might be made at that stage, though a court is still likely to need persuading that, on what is essentially a legal issue, and upon a hearing confined to a consideration of legal points, the chairman's notes could be of any relevance. Even if belatedly the respondents seek to take this point it would seem unlikely that the chairman's notes could be of any relevance. I do not exclude the possibility of a renewed application at later stage.
16. LORD JUSTICE CHADWICK: I agree.
Order: Application for permission to appeal allowed. Application for tribunal chairman's notes refused. No decision re the costs