United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS R TUCK (Of Counsel) Instructed by London Borough of Tower Hamlets Legal Services Department Town Hall Mulbury Place 5 Clove Crescent London E14 2BG


 


JUDGE PETER CLARK

1. The issue in this case is whether, as the Stratford Employment Tribunal found, the Applicant, Mr Wilson, was entitled to holiday pay under the Working Time Regulations 1998 (the Regulations) which was unpaid by his employer, the London Borough of Tower Hamlets. The employer appeals against that Employment Tribunal's decision promulgated with Extended Reasons on 29 June 2001.
2. This is a Preliminary Hearing at which the question for us is whether the appeal raises an arguable point of law. We think that it does. In addition to the grounds advanced by Miss Tuck which we shall permit to proceed to the full hearing we think that the question may be formulated in this way: did the Employment Tribunal err in failing to ask itself whether the contractual hourly rate paid to the Applicant in his part-time employment as a music teacher at 2 of the employer's primary schools, £23.14, did in fact include an element of holiday pay. If so, it seems to us arguable that bearing in mind the definition of a week's pay contained in Sections 221-224 ERA 1996, imported into the Regulations by Regulation 16(2), excludes holiday pay, see Secretary of State for Employment v Haynes [1980] ICR 371, the correct approach would be to deduct the holiday pay element from the hourly rate in order to see whether the true calculation of a week's pay, together with such holiday pay element, discloses any shortfall in the holiday pay to which he is entitled under the Regulations.
3. We should also observe as we did in argument this morning that later this week the question posed above may fall to be determined in the case of Gridquest Ltd & Others v Blackburn and Others (EAT 598/00), a full appeal hearing listed for 1 November 2001 on which I am due to sit. The decision in that appeal may therefore have a bearing on the instant appeal.
4. At this stage we shall say no more other than to permit the matter to proceed on the grounds set out in the notice of appeal and to consider the point as formulated earlier in this judgment to a full hearing which shall be listed for 4 hours subject to alteration on notification by the parties. Category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. This is not a case in which Chairman's notes of evidence appear to be necessary. There are no further directions.