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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Jones v Squire's Garage & Road Transport Ltd [1994] UKEAT 752_92_2907 (29 July 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/752_92_2907.html
Cite as: [1994] UKEAT 752_92_2907
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE MORISON
MR T S BATHO
MR D O GLADWIN CBE JP
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant APPELLANT IN PERSON
For the Respondents NO ATTENDANCE BY OR
REPRESENTATION ON
BEHALF OF THE
RESPONDENTS
MR JUSTICE MORISON: In this case Mr Jones has made an application to an industrial tribunal claiming that he is entitled to a guaranteed payment of 15 days, or three tranches of payment each in respect of a period of five days.
The provisions which deal with guaranteed pay are to be found in sections 12 to 17 of the Employment Protection (Consolidation) Act 1978. The scheme of the Act may be summarized in this way: where an employee is not provided with work by his employer during a normal working day due to a diminution in the amount of work which the employee was employed to do then, subject to other provisions, he is entitled to a guaranteed payment in respect of a workless day or workless week. That right is lost to the employee for a number of possible reasons, which are set out in section 13 of the Act, none of which applies here. Section 14 specifies the method by which a guaranteed payment is to be calculated. Again, as we understand it, there is no dispute about the way this section operates. An employee is entitled, in a case such as the present, to a guaranteed payment of five days' pay in respect of any period of three months. Under section 16(2) of the Act, a contractual payment for a workless day may be set off so as to extinguish or diminish the guaranteed payment for that day and vice versa.
The facts of this matter are as follows: Mr Jones was employed by Squire's Garage & Road Transport Ltd from 23 April 1990 to the end of November 1991 as a long-distance lorry driver. Due to shortage of work he was laid off from 20 May 1991 and paid five days' guaranteed pay for five workless days and that exhausted his rights to a guaranteed payment for 13 weeks from that date, which would take one to 18 August 1991. During that 13-week period, Mr Jones was given work to do from 28 May to 9 July, some six weeks, although it appears that due to what happened when he was driving for a particular customer he had to be laid off again. On 30 or 31 August, it does not matter which, he was paid a further guaranteed payment. The employer says that because he received pay for six of the 13 weeks for work done during that period, the next payment was not due until six weeks after 18 August and that the payment made in August was for a further 13-week period, which extended from the middle of September until after the employee left. Therefore, the employee was entitled to no more than two guaranteed payments to extend from the period 20 May. The employee says that the 13-week periods ran from 20 May to 18 August, from 19 August to 17 November and that in relation to the week commencing 18 November he was entitled to a further payment of five days' guaranteed pay.
Thus, it will be see that the issue is whether the employers are right that they are entitled to treat the six weeks during which there was work as postponing the running of the 13-week period. The Industrial Tribunal decided that section 16(2) of the Act meant that the employer was entitled to offset the guaranteed payment paid against future liability and that that subsection provides that:
"Any contractual remuneration paid to an employee in respect of a workless day shall go towards discharging any liability ... to pay a guaranteed payment ..."
In our view, the Industrial Tribunal were wrong. None of the days the employee worked could be workless days. Therefore, he has received no pay in respect of any workless day and, therefore, there was nothing to offset in respect of the workless days. A person is only entitled to five days' guaranteed pay during the 13-week period, which is not the same thing as trying to say that a payment, when made, covers a particular period of time. The 13-week limit prevents an employee claiming more than five days' guaranteed pay in any 13-week period, whether or not he worked for 12 of those other weeks during that period.
Accordingly, we are of the view that the appeal should be allowed to the extent that Mr Jones is entitled to be paid a further guaranteed payment for the period of 13 weeks commencing 18 November 1991.