United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SINGH (the Appellant in person)


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of an appeal by Mr Singh against a decision made by Mr Williams sitting alone as the Chairman of the Employment Tribunal at Shrewsbury, promulgated by letter on 3 April 2001, refusing the application of Mr Singh for a review of a decision of the same Tribunal, with Mr Williams as Chairman, upon Mr Singh's application against his employers for outstanding salary and holiday pay. The original decision was promulgated by the Tribunal on 5 March and was later subject to correction by a Certificate of Correction on 6 April 2001.
2. The review application related wholly to Mr Singh's claim for outstanding holiday pay. By the original decision Mr Singh was awarded, in respect of holiday pay, only that proportion of his annual holiday pay which was appropriate to the period of 19 days between 1 October 1999 and 19 October 1999, that is to say 19/365^ths of his 30 day holiday entitlement, although he had not taken any holiday in the preceding year and possibly in the year before that. The date of 1 October was taken as the starting point because that was the beginning of the employer's holiday year. The date of 19 October was taken because that was the date on which the employers, a limited company, one of the directors of which was Mr Singh's brother, Mr Pardesi, was put into liquidation. As the Tribunal found, Mr Singh's employment came to a sudden end on that day.
3. Mr Singh had a written contract of employment. It entitled him to 30 days holiday per year, at least for the 1998/1999 holiday year; but it provided that untaken holiday could not be carried over if not taken in the holiday year in which it accrued unless firstly, there was prior written approval by the employers and secondly, holiday arrangements had been postponed at the request of the employers or holiday had not been taken because of the demands of the job. The Tribunal found that there was no such written approval; and there was no suggestion from Mr Singh that his employers had required him to disturb holiday arrangements or that he had not taken holiday as a result of the pressures of his job. On the contrary, it seems that Mr Singh did not take his holiday because he wanted to accumulate it so as to be able subsequently to take a longer break to India. Mr Singh did not produce to the Tribunal any written authority from his employers for the holding over of his holiday. The Tribunal held that he had lost any entitlement to holiday prior to the start of the holiday year which was current at what the Tribunal found to be the effective date of termination, namely 19 October.
4. Dissatisfied with that decision in relation to holiday pay, Mr Singh made an application to the Tribunal for a review. He made that application by a document dated 16 March 2001. In it he raised 2 points. Firstly, he said that he had obtained documents from his previous employer confirming that his holiday entitlement could be carried on into the next holiday year, which he had not produced at the Tribunal because he was not aware that they were required. Secondly, he said that the company stopped trading on 30 September and that was the date on which the Tribunal should have found that his employment came to an end. He sent, he tells us, with that application, 2 documents; the first is a letter from his brother, Mr Pardesi, to Mr Singh himself, dated 8 November 1999 (over a year, of course, before the effective Tribunal hearing) in which Mr Pardesi says that he understood from the liquidator that because Mr Singh had not taken annual leave he would be entitled to holiday pay inferentially in respect of the holiday year 1998/1999. The second document is a document in which the Redundancy Payments Services set out holiday pay that they were willing to pay in relation to a different employee, Mrs Plenty, who appears to have had her holiday pay calculated on the basis of holiday which was outstanding to her in respect of the 1998/1999 year.
5. The Tribunal rejected the application for a review without at hearing, as it was entitled to do under the Rules, on the basis that it did not have any reasonable prospect of success. The reasons why it so concluded were threefold. Firstly it concluded that the application for review was received out of time, secondly that the new evidence referred to could have been made available at the earlier hearing and thirdly that the effective date of termination was considered by the Tribunal at the original substantive hearing.
6. We are concerned only today with the question – is there an arguable case that the Chairman erred in law in rejecting the application for a review? We are unanimously of the view that there is not such an arguable case and that this appeal must be dismissed.
7. So far as time is concerned it is clear that the application for a review was dated well within the 14 day period prescribed for such an application by the Rules. Mr Singh tells us that he thinks that he may have posted it or may have faxed it to the Tribunal (although he does not have any record of faxing it) and we have no material before us which tells us when it was received by the Tribunal. We are going to assume for the purposes of this hearing that the application for a review was not out of time; but that, of course, does not mean that there is an arguable case that the Tribunal were wrong to reject the application on the basis that it had no reasonable prospect of success. We have to look to see whether the Chairman could be said arguably to have erred in law in rejecting the application on the other 2 bases on which he rejected it.
8. We will deal firstly with the point, made by Mr Singh to us today, that the original Tribunal erred in concluding that the effective date of termination of his employment was
   19 October and that it should have decided that the effective date of the termination of his employment was 30 September. If, of course, the Tribunal had so decided then he would have been entitled and would not have lost his accrued holiday rights in respect of the 1998/1999 holiday year. We can understand why Mr Singh feels that he has been dealt with harshly in receiving only holiday in relation to the last 19 days of his employment; but it is not arguable that the Tribunal erred in law in deciding that the effective date of termination in Mr Singh's case was 19 October. It is not arguable for 3 reasons. Firstly Mr Singh, in his own application to the Tribunal (in his IT1) actually specified 19 October as the date of the termination of his employment. Secondly Mr Singh tells us that, at the Tribunal hearing, he argued that the date of termination was 30 September but it was argued by the representative of the company or the Secretary of State for Trade and Industry (and we think it was the latter who had intervened in this case) that the date was 19 October and the Tribunal found as a fact that that latter date was indeed the date. We see no basis on which that finding of fact by the Tribunal can be said to have been wrong in law. It was for the Tribunal to find as a fact when the employment ended. Thirdly Mr Singh accepts today that he did continue working after 30 September. He says it was only to help out; but nonetheless he continued to work and claim salary in respect of the period from 30 September to 19 October. So, although others employees were treated on the basis that they had stopped working on 30 September, that did not apply in Mr Singh's case. Therefore we see no arguable basis for an attack on the Tribunal's original decision. On the issue of the effective date of termination the Chairman, in our view, was right, or certainly could not arguably be said to have been wrong, in deciding that there was no reasonable prospect of success for a review.
9. As to the new evidence, the Chairman concluded that the evidence could have been made available at the earlier hearing. So far as the letter from Mr Pardesi is concerned, Mr Singh tells us today that he actually had the letter with him at the Tribunal hearing but failed to put it before the Tribunal. We have considerable sympathy for Mr Singh who was unrepresented and may not have had a full understanding of what was wise for him to put before the Tribunal and what was unwise. The fact is that the document was available at the time and could have been put before the Tribunal. The Chairman cannot in our view be said to have acted wrongly in law in rejecting the review on the basis that there was no reasonable prospect of Mr Singh's succeeding in convincing the Tribunal on a review that it ought now to look at a document which he actually had in his file at the relevant time. We would add that, even if he had put that document in, it probably would not have been sufficient, because, of course, it is a retrospective document having been written after the liquidation and does not amount to a written indication prior to the liquidation from the company to Mr Singh that he would be allowed to carry his holiday over. As to the other document relating to Mrs Plenty, we do not know whether that document was or was not available to Mr Singh at the time but it would not and could not have made any effective difference to the case in any event, because each employee's case would have to be taken on the basis of the individual facts relating to that employee. There is no material to show that Mrs Plenty had the same contractual terms in relation to holiday as did Mr Singh.
10. It is clear to us in the circumstances that, assuming as we do, that the application for a review was received in time, nonetheless the application for a review had no reasonable prospect of success, or at least the Chairman's decision that it had no reasonable prospect of success, was not one in respect of which any arguable error of law has been shown. For those reasons this appeal is dismissed.