United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J WEBSTER IN PERSON
For the Respondent	MR E MILLER IN PERSON


 


JUDGE D PUGSLEY:

1. This is a hearing of an appeal from an Employment Tribunal sitting in Leeds. I hope Mr Webster will forgive us if we say that he is very anxious, understandably, to tell us that a lot of his work is of a rather basic nature in Yorkshire and he is a plain speaking man and I trust that he will not take offence if we follow his stance.
2. We have found this a somewhat mesmerising case. Leave was sought at the preliminary hearing consisting of Lindsay P, Mrs Prosser and Mr Shrigley and all the grounds were rejected save one. The one ground that was not rejected was this issue concerning holiday pay in the relevant passage of the judgment which reads as follows:

"9. A third point is holiday pay. Mr Webster makes the point that it is wrong for the purposes of computing holiday pay to take as the weekly wage the £550 gross which was allowed to Mr Miller not as a salary but on account of his earnings, which were entirely bonus-related. The right to holiday pay where there is no express agreement on the point, derives from the Working Time Regulations 1998 – see Harvey R/1072 onwards and see in particular Regulations 14 and 16. Regulation 16(2) refers to section 221 to 224 of the Employment Rights Act 1996 for the computation of a week's pay for holiday pay purposes. The computation in those sections requires a look at whether there were normal working hours and, if not, in the way set out in some detail in those sections, then one has to look at a particular 12 week's average. The tribunal here simply seems to have taken the £550 gross allowable sum and multiplied it by two in its paragraph 8. It is, as it seems to us, arguable that it erred in doing so."

3. The Employment Appeal Tribunal then went on to say that this is the only point to go forward; the rest of the Notice of Appeal was dismissed and the Employment Appeal Tribunal expressed the hope that the parties might reach some sort of agreement. It recognised that Mr Webster felt strongly that he had not been fairly treated, in the sense that he had given considerable support to Mr Miller and had paid him that which he owed him. The Employment Appeal Tribunal emphasised that they could only deal with errors of law and the only error of law they had identified as arguable was in relation to holiday pay.
4. Mr Webster was clearly making that point and it was a point that had been foreshadowed in a letter to the Employment Tribunal of 3 December 1999 in which it said that Mr Miller was taken on as a commission salesman and pointed out how many hours had had chosen to work was up to him and continued:

"Mr Miller lists his basic wage as '£550.00 per week gross including part commission', his average take home pay as '£403 per week' and other bonuses or benefits as '10% bonus not paid'. As was made clear above, Mr Miller's wage was entirely commission, at 7% on all office provided leads up to a sale total of £300,000 a year, and at 10% on any further sales above this; and 10% on all self-generated leads. He was paid an amount of £185 (as per original contract) gross per week on account, rising to £550 per week gross on account following his demands. This was not a basic wage, but an amount that would be totalled and amended quarterly by the commission due."

5. The grounds of appeal at paragraph 2 effectively reiterate the same point. At paragraphs 2 and 3 of the Tribunal's Extended Reasons clearly indicate that Mr Miller was employed solely on a commission basis and these paragraphs clearly state he is to be paid on account. It was never intended that holiday pay be paid on the large amount of £400 on account but the smaller amount of £150 net as per the employment contract.
6. Mr Webster before us has effectively said that that letter was drafted by his accountant and it does not represent what the position was. He described the amount of payment as a salary. He said it was useless to try and get it back. He said he did not expect to get it back. He had every confidence, he said, that he thought Mr Miller would do better than and that, of course, was a view that Mr Miller, the Respondent to this appeal, also takes. He said, "I did not expect to get him to pay it back if he had not reached his target". During the argument I suggested that analogy with a partnership where there are agreed drawings based on what it is predicted the amounts would be but Mr Webster said that was not the basis. In reply to Mr Hougham, a member of this Tribunal, Mr Webster said he did not expect to get it back and he used the word, it was a salary. Put simply, the only ground on which this has been allowed to proceed to a full hearing is upon a ground, which was foreshadowed in the documentation, which has been undermined by what Mr Webster has told us. In all the circumstances we just cannot see that there is any point in remitting this to a Tribunal to yet again reconsider it.
7. In these circumstances we see no basis on which we can allow the appeal because the factual basis on which the argument was put before the President of the Employment Appeal Tribunal has not been borne out by what Mr Webster has himself said about what the arrangements were. In our view it would be a totally pointless exercise to remit this case because Mr Webster would say exactly what he said to us. We cannot see that the Tribunal could reach any other than the decision on that particular issue than that which they have already reached.
8. We have no alternative but to say that we dismiss this appeal.