United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANTS / RESPONDENTS
For the Respondents


 


JUDGE J HULL QC: Neither of the parties have attended here today. It appears to us from reading the papers that there may be a question of principle and more general importance here. I can state the way in which we see the matter reasonably shortly.

This is a case in which Mr Dykes, and his wife, Pamela, were employed by Kettering Rifle Bank Club Ltd, which is a working men's club in Kettering; they were first employed on 1 May 1994 and their employment ended on 29 November 1995, and the question arose of their holiday pay which was outstanding. They complained to the Industrial Tribunal on 22 February 1996 and they made two appearances before the Industrial Tribunal.

The first one was on 16 August 1996 and is at page 6 of our bundle. The Industrial Tribunal on that occasion complained that the quality of the evidence was very poor, but doing the best they could they found that Mr Dykes was the Steward of the Club and he worked six days a week at the daily rate of £36.50; Mrs Dykes worked four days a week at £18.50 per day and they found that there were accrued days of holiday pay and they arrived at the correct amount by multiplying the number of days holiday which had accrued to each of Mr Dykes and Mrs Dykes by their respective daily rate of pay and that produced an answer.

There was an application for a review. Before I come to that I should say that on this first occasion the Industrial Tribunal found that the Applicants, in normal circumstances, accrued holiday pay for the following year in accordance with a scale set out in the contract of employment and as set out in the scheme of wages and conditions of service of the Committee of Registered Clubs' Association. They said that any untaken accrued holiday pay at the end of any particular year was to be paid to the employee on 31 December of that particular year or, if sooner, the termination of employment.

So that, on the basis of that unsatisfactory evidence, as they found it was, was the best they could do. There was an application for a review. The same Tribunal sat again to hear the matter and they agreed to review their decision and they did so. They found that Mr Dykes was entitled to 17 days accrued holiday pay and Mrs Dykes 11 days accrued holiday pay, but this time they did not simply give each of them a day's pay for each holiday. They adopted the rule which applies under the Apportionment Act 1870 and divided the annual pay (arrived at, of course, from the daily rate of pay) by 365. There seems to be a small error on that basis in the case of Mrs Dykes' pay, but that was the way in which they went about it. They may have had in mind what is said in Thames Water v Reynolds [1996] IRLR 186, which is a recent case in which our Tribunal, chaired on that occasion by Judge Peter Clark, decided on the application of the Apportionment Act 1870 to a contract which was quite plainly in rather different terms, in which an annual salary was payable weekly.

However that may be, the Tribunal appear to have changed their minds about the correct method of calculation and they have not given their reasons for changing their minds. We have not, ourselves, seen any of the contractual documents which they referred to on the first occasion, nor, as I say, have we any clear view, any satisfactory view, as to why they changed their mind on the second occasion.

Mr and Mrs Dykes were represented by the Citizens Advice Bureau and the Notice of Appeal complains of this change; the way in which the Tribunal calculated the pay for holiday purposes. The Notice refers to Thames Water Utilities v Reynolds. There was a skeleton argument put in by the CAB worker, taking the same point. In that skeleton argument the CAB worker says, without giving any evidence to support it, as follows:

"Their holiday entitlement was determined by reference to a table in the NJIC Scheme of Wages and Conditions of Service 1996."

And he says that in the circumstances the weekly wage should be divided by the number of working days in a week, and he refers to the case of Thames Water Utilities v Reynolds, which he says should be distinguished.

We find it quite impossible to say how, if at all, the Apportionment Act 1870 should be applied, without seeing the contractual documents and deciding whether that Act does, or does not, apply and, of course, it may very well be that the contractual documents, on their true construction, either expressly or by necessary implication, say how the calculation is to be done. We are quite unable to give any view on that. Neither party, as I say, has attended us today.

What we propose to do in view of the circumstances outlined by the CAB, namely that their representative, their advocate, is unavoidably detained at another Tribunal; is to adjourn this matter to give the parties a further opportunity to attend and help us. We would ask them, whether Appellants or Respondents, if they wish to take part, please to make an affidavit, saying what the contractual documents were that were put before the Tribunal, if they can say so and what, if any other, contractual documents they wish to put before us, if by some mishap they were not placed before the Tribunal.

We also wish to ask the Chairman of the Industrial Tribunal to explain to us, if he would be good enough to do so, why the Tribunal changed the basis of calculation between the first hearing and the second hearing.

It may be that, armed with those matters, we shall feel able to adjudicate on the matter. At the moment we are simply unable to do so. The only alternative, therefore, would be to dismiss the appeal, but in view of the rather special circumstances which are explained to us by the CAB worker, we propose to give at any rate one opportunity and to ask for the assistance which we have referred to. Those are the reasons of us all for adjourning the matter.