United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS LOUISE CHUDLEIGH (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of a Preliminary Hearing the Appeal of Mr R N Jenkins in the matter Jenkins v IACR Rothamsted. There are 2 Appeals (I think) in front us at the moment, both Ex Parte. Today Mr Jenkins has appeared by Ms Chudleigh under the ELAAS Scheme and we are grateful for her assistance. It is necessary to say something of the background to the thing.
2. On 15 September 1999 Mr Jenkins lodged an IT1 claiming unfair dismissal as at 24 August 1999. Although the details of his complaint did not make it entirely clear what had happened on 24 August 1999 it was clear enough or became clear enough that amongst his claims was a claim that he had worked during time upon which, shortly before his dismissal or resignation, he could have been on holiday and for which he would have been entitled to holiday pay.
3. On 12 October 1999 there was an IT3 lodged by the Respondent, IACR, claiming that there was no dismissal but rather that Mr Jenkins had reached normal retirement age and that his contract had expressly stated that retirement age was 60 and denying also that there had been any oral indication to him that extensions beyond 60 were the norm at IACR. Those 2 matters, the IT1 and the IT3, were heard on 20 January at Bedford under the Chairmanship of Mr P Robjant. The unanimous decision of the Tribunal was:

"1. The Applicant's claim for unfair dismissal fails: the Tribunal has no jurisdiction.

2. The Applicant is entitled to the net sum of £10.11, being the balance of pay in lieu of holiday due to him."

And that was accompanied by Summary Reasons that included this:

"We are satisfied that there was a normal retiring age for employees holding the position held by Mr Jenkins, and that age applied equally to men and women. Accordingly we find that we have no jurisdiction to hear Mr Jenkins' claim of unfair dismissal.

We did consider whether Mr Jenkins had any argument that there had been some form of breach of contract in not allowing him to stay beyond his 60^th birthday, but Mr Jenkins himself agreed that there had been no promise to that effect at any time."

4. The unfair dismissal side of things thus falls away. There is no Appeal against that. On 31 January Mr Jenkins wrote to the Employment Tribunal drawing attention to what he believed to be an error in the form of computation of the holiday money. On 3 February the Employment Tribunal told him that he could either seek a Review or could appeal. On 22 February he decided to seek a Review and he did that by letter of that date to the Employment Tribunal setting out an argument as to what he said was the proper way of computing the holiday pay in the circumstances as they had been held to be.
5. On 28 February that Application for a Review was declined. It came before the Chairman alone Mr Robjant and the decision was:

"1. I extend the Applicant's time for applying for a Review to 23^rd February 2000.

2. I refuse the Applicant's application for a Review under Rule 11, as it is my opinion that the Review has no reasonable prospect of success."

And in paragraphs 6 and 8 of the Extended Reasons given by Mr Robjant on that day, he wrote this:

6. "However, Mr Jenkins does not identify any of the grounds set out at Rule 11(1)(a)-(e), which would permit the Tribunal to consider a Review. His challenge, in essence, is one of law. It is not therefore a challenge which is appropriate to consideration under Rule 11.

7. As to the law, Thames Water Utilities –v- Reynolds [1996] IRLR 186 is a decision of the Employment Appeal Tribunal, in a similar application to holiday pay, that the employers correctly calculated the employee's arrears of holiday pay on the basis of 1/365^th of his annual salary for each day of holiday. I consider that the present Tribunal is bound both by the decisions of Section 2 of the Apportionment Act 1870, and the findings of the Employment of Appeal Tribunal in Reynolds.

8. For the reasons set out at paragraphs 6 and 7 above, I am satisfied that this application for a Review has no reasonable prospect of success, and I refuse the application, pursuant to my powers under Rule 11(5)."

6. Mr Jenkins was still unhappy with the form of computation. On 9 March, 6 weeks from 27 January, (that is to say, from the date on which the substantive decision was sent to the parties) expired but, of course, the substantive decision had been accompanied only by Summary Reasons. So the position was that not only had the usual time period not expired, it had not even begun.
7. On 21 March, in answer to the further correspondence that they had been receiving from Mr Jenkins, the Employment Tribunal at Bedford said this:

"A Chairman of Tribunals (Mr P Robjant) directs I write to you in the following terms:

"The Tribunal cannot enter in to any further correspondence with you. You do have the right of appeal. Legal aid may be available in the Employment Appeal Tribunal, although not in the Employment tribunal. You should take advice from a solicitor, or Citizens Advice Bureau."

8. On 6 April the Notice of Appeal was received by the Employment Appeal Tribunal as an Appeal against the substantive decision promulgated on 27 January. On 12 April the Employment Appeal Tribunal indicated that Extended Written Reasons were necessary. What the Employment Appeal Tribunal said on 12 April was this:

"The time for applying for the extended written reasons is set out in the Explanatory notes sent with Employment Tribunal decision. In the event of your request for the extended written reasons being refused, you may make an appeal to the EAT against that refusal. The appeal must be made within 42 days of the date of the refusal letter and be supported by a copy of the refusal letter. The matter will then be set down for a preliminary hearing."

9. Despite that letter to Mr Jenkins, nothing was heard from him by the Employment Appeal Tribunal and on 27 April an "Unless Order", as it is called, was made by the Registrar at the Employment Appeal Tribunal. The Order reads in part:

"IT IS ORDERED that unless written confirmation is received within 7 days from today that an application has been made to the Employment Tribunal for the Extended Reasons for the Decision the Notice of Appeal will be struck out"

10. On 1 May Mr Jenkins indicated to the Employment Appeal Tribunal that he had in fact already written to the Employment Tribunal for extended reasons. Indeed, he said he had done so on 14 April but that the matter had been delayed because the Chairman was on holiday. The Employment Appeal Tribunal was sent a copy of the letter that had been sent on 14 April by Mr Jenkins to the Employment Tribunal at Bedford, which said amongst other things:

"Further to our telephone conversation earlier today I am instructed by the Employment Appeal Tribunal to request a copy of the Extended Written Reasons related to the Tribunal held on 20^th January 2000 and Promulgated on 27^th January 2000. I am only in possession of Summary Reasons which I understand do not satisfy the Appeal Tribunal."

11. On 16 May the Employment Tribunal responded to that request for Extended Reasons. There was a letter to Mr Jenkins from Bedford saying amongst other things:

"Your application for extended reasons was received by the Tribunal on 15^th April, eleven weeks after the promulgation of the Tribunal's decision (with summary reasons) on 27^th January 2000.

Your application for extended reasons is out of time. The Chairman (Mr P Robjant) is not prepared to grant you an extension of time for making that request. Your application for extended reasons for the Tribunal's primary decision on 20^th January 2000 is therefore refused."

12. On 18 May Mr Jenkins appealed to the Employment Appeal Tribunal against that refusal to give extended reasons and on 4 October Mr Jenkins put in a Skeleton Argument to raise with us at this preliminary stage what provisionally seems to us to be an arguable point which we should pause to explain. He had had Thames Water Utilities v Reynolds [1996] IRLR 186 cited against him as an authority for the argument that his view as to how holiday pay is to be calculated was wrong and it has been said that the Employment Tribunal is bound by that case. We have not heard argument in any detail but it seems to us that the Reynolds case was dealing with a different point, which we need to explain.
13. Towards the end of his service in August 1999 Mr Jenkins was owed holiday pay. But he was asked 'would he work right down to the very day of his last day of service' and he agreed and consequently did not have a holiday but was owed pay for that period. The Tribunal seems to have held that what they were concerned about was some 14½ days actually worked, being working days as to which he would otherwise have been entitled to receive holiday pay. The employer computed the rate of payment for those 14½ days as follows. They took the rate of net pay for the month of August 1999 and divided it by 31 to get a rate per day, then they multiply it by 14½, reckoning that was the actual number of days worked, and hence they arrived at the sum of £527.34. Such a form of computation has the odd result that if he had retired in February the figure under the line would have been 28 or 29 depending on if it was leap year and one would get a different rate of pay in that way.
14. The Employment Tribunal agreed with Mr Jenkins that that was not the way to do things. What they said was the correct way to do things was to look at the pay for a whole year and then divide it by 365 to get a daily figure and then multiply by 14.5 to represent a figure for 14½ days work. That came out with a figure of £537.45 and it was in that way that they came to award Mr Jenkins £10.11. But the point Mr Jenkins now wishes to assert is this, that if, as was plainly of the case, the denominator below the line is to be 365, that is a number which includes Saturdays, Sundays, public holidays and so on. And so, says Mr Jenkins, the numerator or integer above the line should also be a number of days which includes Saturday, Sunday, holidays, public holidays and so on and that if one does that then the amount that he is to be paid increases. We are not talking about a very large sum. Ms Chudleigh says it could be as much as £300 but it is certainly, from Mr Jenkins' point of view, worth arguing about and in any event raises the principle of how it is that one computes in such cases.
15. Reynolds, as it seems to us - and it is only a provisional view and we have not received any argument to the contrary - is concerned only with the denominator below the line, 365. It was not concerned with the numerator above the line or the proper relationship between the figure above and the figure below the line.
16. Let us suppose that Mr Jenkins' argument is seriously arguable - and it seems to us that it is at least reasonably arguable - one procedure, of course, would be as follows. We could allow the Appeal against the Employment Tribunal's refusal to give extended reasons. We could then remit to the Employment Tribunal for those reasons to be sent to the parties. The parties could then await a Notice of Appeal within 42 days of those reasons on Mr Jenkins' part. There would then be perhaps a Preliminary Hearing of that Notice of Appeal Ex Parte and, if the view that we have taken is right, then that Preliminary Hearing would lead to a Full Hearing Inter Partes which could then go ahead. It seems a ludicrously cumbersome way of dealing with the matter, especially given the delays that have already been suffered.
17. So, what we should do is to provide a much more speedy course. The Employment Appeal Tribunal Practice Directions, paragraph 2(2), give a discretion to the Employment Appeal Tribunal to proceed on the footing that the Summary Reasons are Extended Reasons. We exercise that discretion and indicate this is an Appeal that is capable of going and proper to go forward on Summary Reasons only.
18. It is a simple question of law. We have not understood the facts to be in dispute. The Appeal as to the refusal to give extended reasons on this footing becomes unnecessary to deal with and so we simply adjourn it generally.
19. We next direct that Mr Jenkins' present Skeleton Argument should stand as the Notice of Appeal so that the Notice will be constituted in part from the Notice of Appeal composed of the front page which is our page 11 at the moment, (which is the printed form that Mr Jenkins completed on 4 April.) That can be the front page of the new Notice of Appeal, to be accompanied, as its succeeding pages, by the Skeleton Argument that Mr Jenkins put in to us to on 4 October. It may be that with Ms Chudleigh's assistance Mr Jenkins would wish to add to or even subtract from that Skeleton Argument when it is to be regarded as part of the Notice of Appeal.
20. So we give liberty to Mr Jenkins to amend the Notice of Appeal within 14 days from today. Ms Chudleigh indicates there might be a draft that is already in existence. One way or another there will be a Notice of Appeal and as part of the fast sift in process we direct that Notice of Appeal to go directly to a Full Hearing Inter Partes. The Respondent's answer to the deemed Notice of Appeal emerging as we have mentioned is to be lodged within 14 days of the service upon them of the Notice of Appeal.
21. Of course, the position is that the Respondents might find themselves spending more on costs, if they wish to argue the point, than is in issue and obviously it might be sensible on their part simply to settle the case. But we know not. What they will wish; they might wish to fight the matter as a matter of principle. However, if terms are not agreed then the Respondents will need to contest the case in the ordinary way. Subject to hearing Ms Chudleigh on the due form of the Notice of Appeal and possibly the time in which it is to be prepared, that is the order that we would make.