United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARK JONES (Solicitor) Messrs Underwoods 83/85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


HER HONOUR JUDGE WAKEFIELD

1. This is an appeal by Mr David Garrett against a review decision of an Employment Tribunal sitting at Brighton by which it altered the calculation of holiday pay found to be due to the Applicant (the present Respondent). It was altered from £15.23 to £30.79. The earlier decision, which was the subject of the review, had been made in ignorance of Regulation 16(3)(c) of the Working Time Regulations 1998.
2. At the hearing before us today an argument has been advanced on the basis, firstly, that the Respondent had not been entitled to take the second week of the holiday when he did, and indeed, had been told by the Appellant not to do so and, secondly, that there is a lacuna in the Working Time Regulations which works to the disadvantage of employers in circumstances where employees are not paid a regular amount for each week's work and such employees take holiday in advance of a time when, on a strict pro rata basis of weeks worked in any year, such holiday had not accrued. These arguments are interesting and potentially sustainable on an appropriate factual basis. Such basis does not however appear to us to exist in this case.
3. The Respondent had applied by his form IT1 for "holiday pay owed". He had taken two weeks holiday from 26 July 1999 to 6 August 1999 in a leave year when he had already had a previous weeks holiday. The Appellant had paid him £55 for the two week period from July. He claimed to be entitled to a further £91.50 based on the average pay over thirteen weeks prior to 6 August 1999. In a notice of appearance the Appellant had denied owing money saying:

"Holiday pay is not payable in advance of the period in which it is earned"

4. The Employment Tribunal heard the case and promulgated the decision on 11 January 2000 with full reasons given on 16 February. As stated in paragraph 2 of the reasons:

"The issue before the Tribunal was whether the applicant had been paid his full entitlement of wages for holiday taken in 1999."

From the decision and the Chairman's notes of evidence subsequently provided, it is clear that there was no suggestion in the evidence of either party that the Appellant had told the Respondent at the time that he was not entitled to take the holiday when he did, or that payment for it could be postponed till the end of the leave year.

5. The Employment Tribunal were concerned only with calculating the rate at which payment was to be made. They did this by reference to the definition of 'a weeks pay' in the Employment Rights Act 1996 Sections 221-224 and to the Working Time Regulations. They however, omitted to notice the relevance of Regulation 16(3)(c) of those Regulations and therefore they calculated the rate at which the weekly holiday pay was to be paid by calculating back twelve weeks from the end of the leave year rather than, as the Regulation required, from the beginning of the actual period taken as holiday. Having realised their error the Employment Tribunal reviewed the decision of its own volition and held a further hearing at which the Appellant but not the Respondent was present and put the calculation right in accordance with Regulation 16(3)(c). From the Chairman's notes of evidence of that hearing, it does not appear that any issue was raised as to the Respondent being refused permission to take a holiday at that time. The Employment Tribunal says in the review decision at paragraph 7:

"The issue before the Tribunal is exclusively an application of the Working Time Regulations. From the Extended Reasons promulgated on 16 February 2000 it can be seen that the Applicant took two weeks' holiday for which he was eventually paid £108.05. The sole issue, therefore, for the Tribunal is the calculation of a correct rate of pay under the regulations. The omission of the first Tribunal was to identify a calculation date which is clearly stated in Regulation 16(3)(c) of the Working Time Regulations 1998. Irrespective, therefore, of the difficulties this may cause the Respondent, the Tribunal is compelled to give force to this provision. It follows that the week's pay should be calculated in accordance with Sections 221 to 224 of the Employment Rights Act 1996, but by reference to a twelve-week period counting back from the first day of the period of leave in question. The Tribunal does not find it necessary to make any finding as to the right of an employer to decline an employee's request for holiday leave before an entitlement has actually arisen. Nor does this Decision deal with the possibility of an employer and employee entering into an agreement to vary or delay the calculation date and/or the payment date of holiday pay."

6. In these circumstances we cannot address grounds of appeal which raise matters which were not an issue before the Employment Tribunal. The basis upon which this appeal was allowed to proceed to a Full Hearing appear to us to have been based on a misunderstanding. We refer to paragraph 2 of the Judgment of Mr Commissioner Howell at the Preliminary Hearing at this Appeal Tribunal where he said this:

"There must be an amended Notice of Appeal, raising in specific terms the issue of what the appropriate method of calculating should be in a case, such as we understand from Mr Garrett this was, where a second week of de facto holiday is taken by an employee during the course of a leave year, in circumstances where it has not been agreed by his employer that he should take that second week of holiday when he does, and it does not represent a week of accrued holiday entitlement at the date he takes it."

Those matters were based on what Mr Garrett said at that Preliminary Hearing at this Court and that we consider in the light of the Chairman's notes of evidence and the two decisions, caused a misunderstanding of the true position. We are satisfied that the review decision correctly based the calculations on the criteria as required by the Act and the Regulations. There is no error of law demonstrated and this appeal fails.