ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge McMullen QC
Appeal No: UKEATPA/0767/10/SM
Strand, London, WC2A 2LL
B e f o r e :
| HARRIET JULIET AGARD
|- and -
|WESTMINSTER KINGSWAY COLLEGE
The Respondent was not represented
Hearing date: 12 October 2011
Crown Copyright ©
Lord Justice Rimer :
'4. Working Hours
Your working week and the pattern of working hours are set out in the appropriate schedule. Your average working week will be 20 hours, 40 weeks per year. …
5.1 You will be entitled to receive your normal remuneration for all Bank and Public Holidays normally observed in England and Wales and to a further period of holiday in each holiday year (as set out in the appropriate schedule)'
5.2 The timing of all holiday/leave is subject to the agreement of your line manager taking into account the impact on services.
5.3 You may sometimes be required to work on statutory Bank and public Holidays (other than those at Christmas, New Year and Easter), in which case you will be given time off in lieu
5.4 In the holiday year in which your employment commences or terminates, your holiday entitlement will accrue on a pro-rata basis for each complete month of service. If, on the termination of your employment, you have exceeded your accrued holiday entitlement the Corporation will be entitled to deduct a sum equivalent to salary for the period in excess from any sums due to you, including payments of salary. If on the other hand you have any unused holiday entitlement, the Corporation may require you to take it during your notice period or will alternatively pay the appropriate sum in lieu thereof.
5.5 In general, holiday entitlement from one holiday year cannot be taken in subsequent holiday years. However, you may, with the agreement of your line manager, carry over up to five days holiday entitlement. Failure to take holiday entitlement in the appropriate holiday year, other than in the circumstances described above, will lead to forfeiture of any accrued holiday not taken without any right to payment in lieu thereof.'
'Annual leave entitlement for a full-time employee is 30 days inclusive of 3 college closure days. These entitlements will be calculated on a proportional basis for part-time staff. …'
'Although the contracts of employment in this case are agreed to be annual contracts, we cannot lose sight of the reality, which seems to us to be at the heart of each of these contracts, namely that the Appellants were paid to work for a total of 43 or 44 weeks a year (including holiday periods) and that none of the Appellants was required to work, did work, or were paid to work in the remaining 8/9 weeks of the year. Mr Gilbert's contract of employment says in terms that he is "employed in a term-time only capacity for 37 hours a week". The contract goes on to make it clear that he was paid for 44 weeks a year, and that the actual working year is 38 weeks and 2 days, with the balance of 5 weeks and 3 days being a pro rata payment of annual and public holidays applicable to full time staff. In this context, it is difficult to regard the manner of payment "in twelve equal instalments" as being other than an administrative convenience, and we cannot give it the weight which Mr Cavanagh's submissions require it to be given.'
'The Claimant argues that she was only obliged to work 40 weeks in the year and that that is evident in her contract and that this is the figure that should be employed. Her argument is attractive. However, her contract is wholly consistent with the contracts in Gilbert. The way in which the contract was operated establishes that precisely the same mechanism was used in her case. Any argument in her favour based upon a difference of wording in the contractual provisions is, to my mind, without any substance. The effect of the clauses I have cited [I have also cited them] and the actual method of payment makes her case indistinguishable. Therefore, I hold that I am bound by authority to find that the revised method of calculation set out by the Respondent is correct. I am not at liberty to determine the matter afresh, for example by finding that the higher figure of 52 should be used, as was submitted by the local authority in Gilbert. Equally, the Claimant's argument appears to attach itself to one particular reading of the statutory language, but Gilbert lends no support to the same. …'.