United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS LAURA COX QC (One of Her Majesty's Counsel) Mr THOMAS KIBLING (of Counsel) Instructed by: Messrs Charles Russell Solicitors 8-10 New Fetter Lane London EC4A 1RS
For the Respondent	MS NAOMI CUNNINGHAM (of Counsel) Instructed by: Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ


 


MR RECORDER BURKE QC

The Nature of This Appeal

1. In 1998 Graham Ashby, then 13 years old, began to work as a paper boy for the proprietors of a newsagents shop, Brayton News, in the village of Brayton, near Selby, Yorkshire. The Appellants, Mr & Mr Addison, took over the business in August 1999; Graham continued to work for them, as one of 15 "paper boys" (by which expression we include boys and girls) employed by them. He worked for 6 days per week and delivered approximately 36 newspapers per day; he was paid £9.00 per week.
2. According to the findings of the Employment Tribunal, before whom Graham brought a complaint which we will describe later, there was no formal system for the paper boys to ask for or be given holidays; Mr Addison did not appreciate that they were employees or that he could refuse to grant holidays when sought. When a paperboy was away, normally the other paperboys would cover by arrangement between themselves; but sometimes Mr Addison made the necessary arrangements.
3. In October 2000 differences arose between Graham and Mr & Mrs Addison about Graham's performance of his duties; as a result Graham's employment ended on 12 October. By that date he had taken, in the year 2000, 1 day's holiday at Whitsun, one week's holiday at the beginning of July and a further day's holiday on 7 October. He had, therefore, taken one week and two days of holiday in the year. He was 15 years old; he was still at school and was of compulsory school age, under domestic law, by virtue of sections 8 (1) and (3) (a) of the

Education Act 1996.

4. After the termination of Graham's employment his father consulted the Citizens Advice Bureau; and Graham then presented an Originating Application to the Employment Tribunal claiming that he had been unfairly and wrongfully dismissed by Mr & Mrs Addison and that unlawful deductions had been made from his pay. He put forward as the reason for his dismissal the fact that he had sought to assert a statutory right to paid holidays. Mr & Mrs Addison, in their Notice of Appearance, contended that Graham was not an employee but was self-employed and paid for a fixed job at a fixed rate. They denied that he had any rights to holiday pay, either on a statutory or on a contractual basis. They denied that any unlawful deductions had been made from Graham's pay; and they asserted that his engagement or, if he was an employee, his contract of employment was terminated on the grounds of his regular failure to deliver papers and magazines to the right addresses.
5. At the hearing before the Tribunal, sitting at Leeds and chaired by Mrs C Lee, Graham was represented by the Citizens Advice Bureau and Mr & Mrs Addison by a solicitor. The Tribunal, having found the primary facts, concluded that Graham was an employee of Mr & Mrs Addison. They then concluded that Graham had been dismissed partly because Mr & Mrs Addison felt that he was seeking too much time away from work and partly because of his inadequate performance of his duties. The Tribunal said, at paragraph 8 (a) of their decision, that Graham's requests for more time off were "the trigger for the dismissal taking place at the time it did" and that "his performance in doing the job…was clearly a significant factor". They concluded, at paragraph 8 (c), that the principal reason for the dismissal was a request for time off which Mr & Mrs Addison saw as the last straw after the number of mistakes which Graham had made. Thus the Tribunal concluded that the reason for dismissal was not misconduct, as claimed by Mr & Mrs Addison, and the dismissal was unfair but that Graham's mistakes were such that he had contributed to his dismissal to the extent of 80%. The Tribunal then assessed the total award of compensation, reduced by 80%, at £22.50.
6. The Tribunal further found that summary dismissal, as had taken place, was not justified and that the dismissal was therefore wrongful; Graham was awarded a further 1 week's pay in lieu of notice, i.e. £9.00.
7. None of the conclusions we have so far described is the subject of the present appeal; the present appeal is directed to the claim, formally advanced as a claim for unlawful deduction from pay but in effect for payment in respect of holiday to which Graham claimed to be entitled but had not received. The Tribunal decided this issue, too, in Graham's favour and awarded him £28.50, representing pay due, at £9.00 per week, in respect of 4 week's holiday per annum divided by ⁴¹/₅₂, (because Graham's employment terminated after 41 weeks of the year) and less the days of holiday which Graham had already had in the year.
8. It is this conclusion as to Graham's holiday pay which has led to the present appeal. Graham's case was not put forward on the basis of any contractual holiday entitlement but on the basis that, whether an employee or not, he was a worker as defined by Regulation 2 (1) of the Working Time Regulations 1998 (SI 1998/1833) (as they were in their original form and before amendments which took effect after the Tribunal's decision) and was pursuant to those Regulations entitled to four week's paid annual leave in each year. The Tribunal decided that Graham was so entitled, albeit with manifest reluctance. In paragraph 3 (g) of their decision, after a lengthy and detailed discussion of the relevant statutory provisions, they said:

(g) "We have, therefore, come to the surprising conclusion that 15 year old workers are entitled to paid annual leave under the Working Time Regulations. This aspect of the decision has been reached after much consideration and debate and has caused "deep dissatisfaction" for some of the Tribunal members. Nevertheless, this is what we understand the law to be."

9. The National Federation of Retail Newsagents, which represents 22,000 members, operating 30,000 outlets and employing 192,000 paperboys, some 71% of whom are between the ages of 13 and 15 and are therefore of compulsory school age, regard the Tribunal's decision as to holiday entitlement as not only surprising but also wrong in law; they have taken up the cudgels on behalf of Mr & Mrs Addison and, no doubt, their other members; and as a result Mr & Mrs Addison found themselves represented before us by Mrs Laura Cox QC and Mr Thomas Kibling. Graham was represented by Ms Naomi Cunningham, instructed by the Free Representation Unit. We would like to pay tribute to the careful and persuasive advocacy of Counsel for both parties; Ms Cunningham, who might be thought to have been at a disadvantage, demonstrated conspicuous ability and good sense on behalf of her client.
10. The essential question which we have to decide and to which we will inevitably have to return in the course of this judgment is – does the definition of "worker" in the Working Time Regulations include a child who is subject to compulsory full time education? Unfortunately the question is easier to state than it is to answer.

The Community Provisions

11. It was common ground between the parties in the course of argument that the relevant provisions of domestic law were intended to implement in the national forum the relevant provisions of community law; logically, therefore, we should start by setting out the relevant community law.

The Framework Directive

12. Council Directive 89/391/EEC ("the Framework Directive") provided by Article 1: -

1 "The object of this Directive is to introduce measures to encourage improvements in the safety and health of workers at work.

2 To that end it contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of the said principles.

3 This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health of workers at work."

13. By Article 3 the Framework Directive provided: -

"For the purposes of this Directive, the following terms shall have the following meanings –

(a) worker: any person employed by an employer, including trainees and apprentices but excluding domestic servants."

14. However, the Framework Directive contained no specific provision in respect of leave or holidays; and it made no distinction between workers of different ages, save that, in Article 15, it provided: -

"Risk Groups

Particularly sensitive risk groups must be protected against the dangers which specifically affect them."

It is clear from the terms of the Framework Directive that it was intended to establish general principles but not definitive obligations, at least in the areas of leave, holidays, rest breaks and the like with which we are concerned in this appeal.

15. The Framework Directive neither expressly includes nor expressly excludes workers of any particular age or age group.

The Working Time Directive

16. Council Directive 93/104/EEC ("The Working Time Directive") provides in its preamble, as the 7^th, 8^th (in part) 12^th, 13^th and 14^th paragraphs, as follows:

"Whereas the provisions of [the Framework Directive] on the introduction of measures to encourage improvements in the safety and health of workers at work are fully applicable to the areas covered by this Directive without prejudice to more stringent and/or specific provisions contained therein…

Every worker in the European Community shall have a right to a weekly rest period and to paid annual leave…

Whereas the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations…

Whereas laying down minimum requirements with regard to the organisation of working time is likely to improve the working conditions of workers in the Community…

Whereas in order to ensure the safety and health of Community workers, the latter must be granted minimum daily, weekly and annual periods of rest and adequate breaks; whereas it is also necessary in this context to place a maximum limit on weekly working hours;

Whereas, with respect to the weekly rest period, due account should be taken of the diversity of cultural, ethnic, religious and other factors in the Member States…"

17. Section 1 of the Working Time Directive sets out the scope and purpose of the Directive and provides definitions. It provides, so far as material, as follows: -

"Article 1

Purpose and Scope

1 This Directive lays down minimum safety and health requirements for the organisation of working time.

2 This Directive applies to –

(a) minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and

(b) certain aspects of night work, shift work and patterns of work."

18. Article 2 provides definitions of, inter alia, the expressions "night worker", "shift worker" and "mobile worker". However, there is no definition of "worker"; and there is no specific inclusion or exclusion of any group of workers by reference to their age.
19. Section II of the Working Time Directive sets out the obligation imposed on Member States to provide entitlement to workers in respect of weekly working time, daily rest between work periods, breaks within work periods, weekly rest periods and annual leave. In each of these areas Member States are required to take measures to ensure that each worker is entitled to the minimum rest, breaks and holidays and the maximum weekly working time specifically spelt out. We will refer to the specific provisions in more detail later in this judgment.
20. Section III of the Directive sets out, in Articles 8 to 13, requirements on Member States to take measures to ensure various entitlements in workers in respect of night work, and shift work and working patterns.
21. Section IV of the Directive contains, in Articles 14 to 19, Miscellaneous Provisions. By Article 14 it is provided that the Directive will not apply where other Community instruments contain more specific requirements relating to the organisation of working time for certain occupations or occupational activities. Article 15 provides that the Directive shall not affect the right of Member States to make provisions which are more favourable to workers. Article 17 provides for specific derogations from Articles 3 – 8 but not for any derogation from Article 7, which provides as follows: -

"Annual Leave

1 Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation an/or practice.

2 The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated."

22. Finally, Article 18 required Member States to adopt provisions necessary to comply with the Directive by 23 November 1996, either by laws and regulations or by agreement between the two sides of industry. In respect of Article 7, Article 18 1 (b) (ii) provided for transitional provisions not lasting for more than three years from 23 November 1996; any such transitional period was over before the year of Graham's employment which gave rise to his claim in respect of holiday pay, namely the year 2000.

The Young Persons' Directive

23. Seven months after the Working Time Directive, the Community promulgated Council Directive 94/33/EC ("The Young Persons' Directive"); its preamble stated: -

"Whereas Article 15 of ["the Framework Directive"] on the introduction of measures to encourage improvements in the safety and health of workers at work provides that particularly sensitive risk groups must be protected against the dangers which specifically affect them…

Whereas children and adolescents must be considered specific risk groups, and measures must be taken with regard to their safety and health…

Whereas, in view of the nature of the transition from childhood to adult life, work by adolescents should be strictly regulated and protected;

Whereas every employer should guarantee young people working conditions appropriate to their age;

Whereas employers should implement the measures necessary to protect the safety and health of young people on the basis on an assessment of work-related hazards to the young…

Whereas, in order to ensure the safety and health of young people, the latter should be granted minimum daily, weekly and annual periods of rest and adequate breaks…"

24. Article 3 of the Young Persons' Directive sets out definitions of "young person", "child", and "adolescent". A "young person" is defined as any person under 18 years of age referred to in Article 2 (1), i.e. having an employment contract or an employment relationship defined by the law in force in a Member state or governed by the law in force in a Member State. A "child" is any young person still subject to compulsory full time schooling under national law. An "adolescent" means any young person who is not a child. Articles 1 to 4 require Member States prima facie to prohibit work by children but permit Member States to make provision for that prohibition to be disapplied in the case of work by children of various types including, pursuant to Article 4 (2) (c) "light work" which is defined by Article 3 (d) as: -

"…all work which, on account of the inherent nature of the tasks which it involves in the particular conditions under which they are performed –

(i) is not likely to be harmful to the safety, health or development of children, and

(ii) is not such as to be harmful to their attendance at school, their participation in vocational guidance or training programmes approved by the competent authority or their capacity to benefit from the instruction received."

It is common ground in this appeal that the delivery of newspapers falls within this definition of 'light work'.

25. Articles 8 to 12 of the Young Persons' Directive impose obligations on those Member States which make use of the option in Article 4 (2) (c) to permit children to undertake light work to adopt measures necessary to limit the working time of children, to prohibit night work by children, to provide minimum breaks within work periods and minimum rest periods between periods of work. Article 11 provides: -

"Annual Rest

Member States which make use of the option referred to in Article 4 (2) (b) or (c) shall see to it that a period free of any work is included, as far as possible, in the school holidays of children subject to compulsory full-time schooling under national law."

26. Article 17 requires, by paragraph 1 (a), that Member States should comply with the Directive either by bringing into force laws, regulations or administrations or by agreement by the two sides of industry by 22 June 1996 (an earlier date than the implementation date under the Working Time Directive); but by paragraph 1 (d) the United Kingdom was permitted to refrain from implementing certain provisions as to weekly working time and as to night work for a further period of four years.
27. It appears from the terms of these two Directives that, although children are not expressly excluded from the Working Time Directive, children are a specific risk group for whom specific provisions for limitation of working time, and night work, and for the provision of breaks, rest periods and leave are to be found in the Young Persons' Directive rather than the Working Time Directive.

National Legislation

The Children & Young Persons Act 1933

28. The Children (Protection at Work) Regulations 1998 (1998 SI276) were laid before parliament on 12 February 1998 and came into force on 4 August 1998. They amended the Children & Young Persons Act 1933 and other statutes relating to children and young persons in various ways; only the 1933 Act is relevant to this appeal.
29. Section 30 (1) of the 1933 Act, which was not amended on the coming into force of those Regulations, defines a child as: -

(a) "In relation to England and Wales, a person who is not over compulsory school age construed in accordance with section 8 of the Education Act 1996."

We have already said that Graham was a child, as so defined; he was not over compulsory school age at the material time.

30. It is necessary to set out in full section 18 (1) of the 1933 Act, as amended by the 1998 Regulations, as follows: -

18 (1) Subject to the provisions of this section and of any byelaws made thereunder no child shall be employed –

[(a) so long as he is under the age of [fourteen years]];

[(aa) to do any work other than light work; or'

(b) before the close of school hours on any day on which he is required to attend school; or

[(c) before seven o'clock in the morning or after seven o'clock in the evening on any day; or

(d) for more than two hours on any day on which he is required to attend school; or

(e) for more than two hours on any Sunday; or

(f) …

[(g) for more than eight hours or, if he is under the age of fifteen years, for more than five hours in any day –

(i) on which he is not required to attend school, and

(ii) which is not a Sunday, or

(h) for more than thirty-five hours or, if he is under the age of fifteen years, for more than twenty-five hours in any week in which he is not required to attend school; or

(i) for more than four hours in any day without a rest break of one hour; or

(j) at any time in a year unless at that time he has had, or could still have, during a period in the year in which he is not required to attend school, at least two consecutive weeks without employment."

Provisions entitling a local authority to make byelaws with respect to the employment of children are set out section 18 (2) as amended; in section 18 (2) (a) "light work" is defined in terms which are virtually identical to the definition contained in Article 3 of the Young Persons' Directive. It is not in dispute that these amendments to section 18 of the 1933 Act were intended to constitute compliance in domestic law with the obligations upon the United Kingdom imposed by the Young Persons' Directive, taking advantage of the options to permit children to work set out in Article 4 (2) of the Directive. As in the case of the Young Persons' Directive, so in section 18 (1) of the 1933 Act as amended, there is no specific provision for annual leave; the requirement in Article 11 of the Young Persons' Directive that there should be a period free of any work included, so far as possible, in the school holidays of children subject to compulsory full-time schooling under national law, is met by section 18 (1) (j) which, in effect, provides that for each year of employment a child shall have a period of at least two consecutive weeks without employment during a period in which he is not required to attend school, i.e. during school holidays.

The Working Time Regulations

31. The domestic implementation of the Working Time Directive is to be found in the Working Time Regulations 1998 (SI 1998/1833), which were laid before parliament on 30 July 1998 and came into force on 1 October 1998. Regulation 2 (1) contains definitions of which the following are relevant: -

(1)…

""adult worker" means a worker who has attained the age of 18;

"night worker" means a worker –

(a) who, as a normal course, works at least three hours of his daily working time during night time, or

(b) who is likely, during night time, to work at least such proportion of his annual working time as may be specified for the purposes of these Regulations in a collective agreement or a workforce agreement…

"worker" means an individual who has entered into or works under (or, where the employment has ceased, worked under) –

(a) a contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract...

"young worker" means a worker who has attained the age of 15 but not the age of 18 and who, as respects England and Wales, is over compulsory school age (construed in accordance with section 8 of the Education Act 1996)…"

32. There is no definition of "child" or "children" in the Working Time Regulations. However, Regulation 2(2) provides as follows: -

(2) "In the absence of a definition in these Regulations, words and expressions used in particular provisions which are also used in corresponding provisions of the Working Time Directive or the Young Workers Directive have the same meaning as they have in those corresponding provisions."

Nevertheless, the words "child" or "children" do not appear in the Working Time Regulations at all.

33. Part II of the Working Time Regulations sets out detailed provisions under the heading "Rights And Obligations Concerning Working Time". Regulation 4 sets out complex provisions as to maximum weekly working time of a worker. Regulations 6&7 set out provisions relating to night workers only. Regulation 10 provides for daily rest; Regulation 11 provides for weekly rest; Regulation 12 provides for rest breaks. We will refer to these provisions in more detail later in this judgment. Regulation 13, headed "Entitlement to annual leave" provides as follows: -

(1) "Subject to paragraphs (5) and (7), a worker is entitled in each leave year to a period of leave determined in accordance with paragraph (2).

(2) The period of leave to which a worker is entitled under paragraph (1) is…

(c) in any leave year beginning after 23 November 1999, four weeks."

There are further provisions which are not relevant for present purposes. Regulation 14 provides for the payment of compensation in respect of outstanding leave on termination of employment; Regulation 15 regulates the dates on which leave is taken.

The Tribunal's Decision

34. The essential issue before the Tribunal, as before us, was whether a child, as defined by section 30 (1) of the Children & Young Persons Act 1933, who is employed or works under a contract for services falls within the meaning of "worker" in Regulation 2 (1) of the Working Time Regulations. If children do fall within the meaning of "worker" in the Working Time Regulations, then they would appear to be entitled to four week's annual leave in each leave year, pursuant to Regulation 13 (1) of those Regulations. If they do not, then they are entitled to at least two consecutive weeks without employment during school holidays in each year, pursuant to section 18 (1) (j) of the 1933 Act. It should be noted that, although the point does not seem to have been argued before the Tribunal, Ms Cunningham on behalf of Graham submitted to us that the two provisions were not true alternatives to each other; it was her submission that Graham fell within both provisions and was entitled to four weeks paid annual leave in each year, two of which had to be in school holidays and consecutive to each other.
35. The Tribunal carried out a lengthy and detailed examination of the Community and domestic provisions which we have set out or summarised above; they concluded that: -

(i) Save as set out in Article 14 and 17 of the Working Time Directive, neither of which applied in the present case, there were no situations in which, under the Directive, Member States were permitted not to provide workers with four week's annual leave (paragraph 3 (b) of the Decision).

(ii) The Working Time Regulations represented the UK government's implementation of the Working Time Directive and the Young Persons' Directive (paragraph 3 (d)) and "by and large mirror the provisions of the two European Directives" (paragraph 3 (e)).

(iii) The argument that a child, who was neither an adult worker nor a young worker as defined by the Working Time Regulations was not included in the definition of "worker" in those Regulations was rejected on the basis that "worker" is not limited in those Regulations to adults and young workers (paragraph 3 (e)).

(iv) The relevant words of the Working Time Directive and Working Time Regulations are not ambiguous; and there are no exceptions to the rights of workers to four week's paid annual leave; for this conclusion the Tribunal relied upon the decision of the EAT in Gibson v East Riding of Yorkshire Council [1999] (ICR 627) to the effect that Article 7 of the Working Time Directive is clear and precise and admits no ambiguity or conditionality (paragraph 3 (f)).

(v) The Tribunal declined to take into account an extract from Hansard and some correspondence from the Department of Trade and Industry intended to evidence what may have been the government's intention when the two sets of Regulations, i.e. the Children (Protection of Work) Regulations and the Working Time Regulations, were passed into law because: -

(a) the relevant words were not ambiguous (see above)

(b) the relevant provisions are not to be found in a statute but in a statutory instrument or statutory instruments

(c) the extract from Hansard, to which reference was sought to be made, was made subsequent to rather than prior to the passing into law of the latter of those two Regulations, i.e. the Working Time Regulations (paragraph 3 (e) and (f)).

(vi) The relevant provisions of the Children & Young Persons Act as amended imposed a criminal sanction on employers and therefore, in contrast with the Working Time Regulations, did not deal with the contractual relationships between employers and children who worked for them; the Working Time Regulations and not the Children & Young Persons' Act as amended were intended to affect those relationships (paragraph 3 (g)).

(vii) The provisions of the Children & Young Persons' Act as amended could only displace those of the Working Time Regulations if they were more favourable which, so far as leave was concerned, they were not (paragraph 3 (g)).

For these reasons the Tribunal reached what they described as the "surprising conclusion" that 15 year old paperboys are entitled to four week's paid annual leave under the Working Time Regulations. It was this conclusion which, the Tribunal said, "has caused deep dissatisfaction for some of the Tribunal members".

Parliamentary Material

36. We were not asked to have any regard to the documents emanating from the Department of Trade & Industry to which the Tribunal referred; they could not, on any view, have been regarded as admissible upon issues as to the true construction of either the Working Time Regulations or the Children & Young Persons Act 1933 as amended, or to the interaction between those two sets of provisions. However, there was considerable argument before us as to the admissibility and potential effect of the extract from Hansard for those purposes. Mrs Cox QC, on behalf of the Appellants, submitted that reference to this parliamentary material was permissible as a means to ascertaining the legislative intention lying behind an ambiguous statutory provision or a statutory provision which appeared without explanation to lead to an absurd result; both of these situations obtained in the present case, she argued; there was ambiguity as to whether the provision for time away from work, to use a neutral expression, in the case of children, was to be found in the Working Time Regulations or in section 18 of the 1933 Act as amended – or, as Ms Cunningham on behalf of Graham submitted, in both; and Mrs Cox QC submitted that it was manifestly absurd that a newspaper boy working, as Graham did for a brief period only in the early morning, should receive four weeks paid holiday per year.
37. The passage in Hansard which we were asked to consider as part of the material which should assist us in ascertaining the correct meaning of and inter-relationship between the relevant statutory provisions is dated 5 March 1999. We were told that it records an answer given by Mr Ian McCartney MP, a junior minister on behalf of the Department of Trade & Industry, to a question raised by a Member of Parliament on an early day motion. It reads as follows: -

"My department has not been in negotiations with the National Federation of Retail Newsagents. I have previously stated that newspaper delivery boys and girls are not entitled to annual paid leave under the Working Time Regulations if they are below minimum school leaving age; anyone aged 16 or over who delivers newspapers is, like any other part-time worker, entitled to paid annual leave but only pro rata according to the hours they normally work."

It is to be noted that this answer was given to the House of Commons some months after the statutory procedures by which the Working Time Regulations 1998 became law were completed and after those Regulations came into effect; they were, to a greater extent, later than the coming into effect of the relevant amendments to the Children & Young Persons Act 1933, which preceded the Working Time Regulations.

38. In Pepper (Inspector of Taxes) v Hart [1993] AC 593 the House of Lords concluded that reference to parliamentary material should be permitted: -

"As an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. However, even in such cases reference in court to parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words."

(per Lord Browne-Wilkinson at page 634 D-E)

39. During the course of argument it became clear that Mrs Cox QC was seeking to persuade us to have regard to the passage in Hansard which we have set out:

(i) even though the statement set out in that passage post-dated the passing into law of the relevant provisions; and

(ii) the ambiguity relied upon arose, at least arguably, not from the construction of any individual part of either the Working Time Regulations or section 18 (1) of the 1933 Act as amended but from the contrast between the relevant provisions of both of those two pieces of legislation.

Neither Mrs Cox QC nor Ms Cunningham was in a position to provide developed submissions on the applicability of the principle in Pepper v Hart to either of these situations; and, lest such applicability turned out to be essential to our decision, we asked Counsel and they kindly agreed to provide us with supplementary submissions. Both Mrs Cox QC and Ms Cunningham provided us with extensively-researched submissions in writing for which we are grateful.

40. We feel bound to say that, despite their manifest erudition, these submissions were inconclusive; but we do not, in the end, find it necessary to resolve the questions upon which we sought them. Our reason is that, in our judgment, what Mr Ian McCartney said on 5 March 1999 in the House of Commons cannot properly be regarded as material which clearly discloses the mischief aimed at by or the legislative intention behind either Regulation 13 of the Working Time Regulations or section 18 (1) (j) of the 1933 Act as amended. What Mr McCartney said appears to us to be no more than an ex post facto opinion (quite possibly derived from legal advice), as to the effect which Regulation 13 was believed to have produced in the case of children working as paperboys and not to have been a statement setting out the mischief aimed at by or the intention of that provision in relation to children or otherwise; section 18 of the 1993 Act as amended is not referred to at all.
41. We are satisfied that the ratio of Pepper v Hart applies in principle to subordinate legislation by statutory instrument, as it does to primary legislation – although in practice it is far less likely than in the case of primary legislation that any parliamentary material admissible in the light of that ratio will be found. In Pickstone v Freeman [1989] AC 66, in considering the effect of the Equal Pay (Amendment) Regulations 1983, Lord Keith of Kinkel said: -

"The draft Regulations of 1983 were presented to parliament as giving full effect to the decision in question. The draft Regulations were not subject to the parliamentary process of consideration and amendment in committee, as a bill would have been. In these circumstances and in the context of section 2 of the European Communities Act 1972 I consider it to be entirely legitimate for the purpose of ascertaining the intention of parliament to take into account the terms in which the draft was presented by the responsible minister and which form the basis of its acceptance…It is sufficient to say that the words must be construed purposively in order to give effect of a manifest broad intention of the maker of the Regulations and of parliament."

Those dicta pre-date Pepper v Hart; but they are an illustration of the approach adopted to the construction of subordinate legislation made in the context of community law before Pepper v Hart; and we see no juridical or logical basis for the view, not supported by Ms Cunningham before us but expressed by the Tribunal, that the ratio in Pepper v Hart cannot apply to subordinate legislation. In our judgment the Tribunal's conclusion in that respect was in error. However, we have concluded that the statement in Hansard on which the Appellants seek to rely did not constitute parliamentary material of the type at which we are permitted to look, as defined in Pepper v Hart, for the reasons we have set out above.

42. It is accordingly unnecessary for us to consider whether the principle in Pepper v Hart applies to a statement made in parliament after the passing into law of the relevant provision or to a situation where the alleged certainty or ambiguity arises not from one statute or statutory instrument but from a comparison between more than one statute or statutory instrument. Those questions, however interesting and indeed alluring they may be, are academic in the light of the conclusion we have set out; and we do not therefore propose to address them further in this judgment.
43. We have dealt first with the issue of parliamentary material because, as we see it, it is necessary to decide whether such material is or is not relevant or admissible before proceeding to the exercise of construction which this appeal requires. If the parliamentary material relied upon is not relevant and admissible, then the issue which we have to decide is purely one of construction, without any such material; and having concluded that the parliamentary material should not play any part in our conclusion, we must turn to that pure issue of construction. However, before we do so we must express our views on the argument put before us as to 1) absurdity and 2) ambiguity lest this case goes further and because they may affect our approach to construction.

Absurdity

44. At first blush it might seem to some to be absurd that a paperboy should be entitled to four weeks paid holiday per year – even, on one argument put forward on behalf of Graham, to be entitled to such paid holiday in addition to two consecutive weeks without work during school holidays; but in our judgment deeper consideration leads to a different conclusion. Firstly, in considering the absurdity for which Mrs Cox QC argued, it is important to bear in mind that, if Regulation 13 of the Working Time Regulations applies to a child who is employed to deliver newspapers, it would not have the effect that the newsagent would have to pay four full weeks of salary while the child rests on a beach or enjoys an adventure holiday. In Graham's case Regulation 13, if it applied to him, imposed on the Appellants the obligation to provide him with 4 weeks in which he did not deliver newspapers but was paid the weekly sum of £9.00 in respect of each of those weeks. If it took Graham an hour and a half on each of his six working days per week to deliver his newspapers, his holiday would represent only one and a half hours per day for six days per week for four weeks and not what one might more commonly describe as four week's holiday.
45. The second reason why we do not regard the result reached by the Tribunal as absurd (irrespective of its correctness or otherwise in law) is based on our consideration of the situation not of a newspaper delivery boy but of a child working in a shop on Saturdays, as many children do and are permitted to do under the terms of section 18 of the 1933 Act as amended; indeed they may work on Saturdays and Sundays and for 35 hours (or, if under 15, for 25 hours) per week during the school holidays. We see nothing absurd in such children having four weeks paid holiday in each year. Why in principle should it be regarded as absurd for a 15 year old who works every Saturday for a year in, for example, his uncle's bicycle shop to have paid holiday as provided for by Regulation 13 of the Working Time Regulations? On the contrary, we can see good reason why such holiday provision should be available in such cases. In such a case, having regard to the age of the child, it would not be absurd had parliament intended to provide four weeks paid holiday and, separately, two consecutive weeks of rest during school holidays.
46. Thirdly, we accept Ms Cunningham's submission that the Tribunal's dissatisfaction with the result which they reached evidenced an assumption that children of Graham's age work for "pocket money" and do not bear financial responsibilities for themselves or their families; any such assumption would in many cases be unjustified. Many children who work delivering papers or in shops at weekends do so, we (and in particular the lay members with their employment experience) believe, because they or their families require their earnings, however small, for current needs or because they wish to use their earnings as savings for the future. It would, in our judgment, be wrong to regard the work of 15 year olds, whether carried out early in the morning, at weekends, or at other times as, to use colloquial expressions "not real work" or not carried out "for real money".
47. For these reasons we do not accept the argument that the Tribunal's conclusion produces an absurd result.

Ambiguity

48. The Tribunal's view that there was no relevant ambiguity was, as we have set out in paragraph 35 above, based on the Employment Tribunal's Decision in Gibson v East Riding of Yorkshire Council, in which the EAT, presided over by Morison P, held that, in the period between the date by which Member States were required to implement the Working Time Directive and that on which the Working Time Regulations came into effect in our domestic law, the Applicant could claim to be directly entitled to annual paid leave under Article 7 of the Directive against his employers, who were of course, an emanation of the state. The EAT said, at page 630 (a) – (c): -

"Article 7 is clear and precise and, in our view, admits of no ambiguity or conditionality. In the lay members' experience, custom and practice in the work place were invariably fill the gaps if there were doubts as to the start and end of a "leave year". It may well be that the employers have a defined leave year, which would be appropriately applicable to the Applicant. No derogations are permitted from the Article. It applies to all workers, both public and private, other than those engaged in sectors stipulated in Article 1 (3). It gives effect to paragraph 8 of the Community Charter of the Fundamental Social Rights of Workers adopted by the European Council on 10 December 1989. It also gives effect for the purpose of the Directive which insists ("must") that Community workers be granted minimum annual periods of rest."

Unhappily, the Tribunal's attention was not drawn to the fact that the EAT's Decision in Gibson had, at the time of the hearing before the Tribunal, already been reversed by the Court of Appeal [2000] ICR 890. The ratio of the Court of Appeal's decision is set out in the judgment of Mummery LJ, with whom Brooke and Pill LJJ agreed, at page 895 (c) – (d) as follows: -

"I disagree with the conclusion of the Appeal Tribunal. In my judgment, the provisions of Article 7 are not sufficiently precise to have direct affect. The Industrial Tribunal rightly rejected the Applicant's claim. I would allow the Counsel's appeal."

And, at page 896 (e) – (f): -

"I agree with the submission of Mr Bowers, who appeared on behalf of the Council, that Article 7 does not have direct affect so as to be enforceable by individual workers in national courts against state employers because it leaves unanswered key questions affecting individual entitlement to annual leave. In a sense Article 7 is precise; the length of the minimum period of paid annual leave is a precise period of 4 weeks. But it does not follow from the precision of the length of period of leave that the obligation in the Article is sufficiently precise for a national court to enforce it at the instance of an individual without more."

49. Whether the Tribunal would have come to a different conclusion had they been aware that the EAT's decision in Gibson had been overruled we cannot say and is unnecessary to determine; but even if the EAT's decision in Gibson had stood, the Tribunal's reasoning from that decision to the conclusion that there was no relevant ambiguity was, in our judgment, in error for two reasons. The first reason is that, albeit against the important background that the Working Time Regulations were intended to implement in domestic law the obligatory requirements of the Working Time Directive, the Tribunal were considering a claim brought under the Regulations and not under the Directive; and they had to consider not whether Article 7 was ambiguous but whether the domestic legislative provisions were ambiguous. Secondly, the argument before them, as before us, essentially involved consideration not only of Regulation 13 of the Working Time Regulations, which was plainly intended (whether wholly successfully or not – see Reg v Secretary of State for Trade & Industry ex parte Bectu referred to below in more detail) to establish in domestic law an entitlement in workers to four week's annual paid holiday as envisaged by Article 7 of the Working Time Directive but also the provisions of section 18 (1) of the 1933 Act as amended, in order to decide how the two sets of provisions interrelated so far as holidays and rest periods were to be provided thereunder to children. Any ambiguity or lack of ambiguity in Article 7 did not determine those issues.
50. It appears to us, therefore, that the Tribunal was not justified in concluding that there was no ambiguity for the reasons which they gave.
51. In our view it is not at all clear, reading the Working Time Directive and the Young Persons' Directive and, in the light of their context, considering the terms of the Working Time Regulations and section 18 (1) of the 1933 Act as amended, whether Regulation 13 of the Working Time Regulations was intended to apply to children at all or, if it was so intended, whether it was intended to apply in combination with or in addition to the provisions of section 18 (1) (j) of the 1933 Act as amended. The Tribunal plainly had difficulty in reaching a conclusion on this central issue, as have we. To that extent there is manifest ambiguity.

Construction

52. The right to annual leave which Member States were required to provide to every worker by Article 7 of the Working Time Directive has been held by the European Court of Justice in Reg v Secretary of State for Trade & Industry ex parte Bectu (2001) ICR 1152 to be subject in principle to no derogations. Mrs Cox QC submitted that Article 14 of the Working Time Directive permitted such a derogation in a case such as the present on the basis that the Young Persons' Directive is another Community instrument containing more specific requirements in relation to children; but Article 14 applies, as we see it, only where another Community instrument contains more specific requirements relating to the organisation of working time for specific occupations or occupational activities; the provisions of Article 7 can only be disapplied as a result of Article 14 if another Community instrument sets out requirements which are more specific than those of Article 7 and which affect not all persons within a particular age group but persons whose work falls within a defined occupation or occupations or defined occupational activities. If the Young Persons' Directive provided specifically for holidays for child paperboys, such provision would fall within Article 14; and Article 7 would be disapplied; but it does not so provide; and children cannot be regarded as constituting per se an occupation or an occupational activity.
53. Accordingly we do not see in Article 14 any escape route from Article 7 of the Working Time Directive in the circumstances of this case. In any event, although of course the Directives constitute important background for those who seek to resolve the central issue before us, if Regulation 13 of the Working Time Regulations applies to children, the fact – if, contrary to our view, it were a fact – that Member States did not need, by reasons of the provisions of Article 14, to provide to children an entitlement to the annual leave set out in Article 7 would not help Mr & Mrs Addison if Regulation 13 of the Working Time Regulations does apply to children.
54. We have considered whether a more directly applicable escape route from Regulation 13 of the Working Time Regulations can be found in Regulation 17 which provides that a worker who is entitled to annual leave under a provision of the Working Time Regulations and under a separate provision may not exercise the two rights separately but may take advantage of whichever right is the more favourable. If Graham was a worker for the purposes of the Working Time Regulations, Regulation 17 will have had the effect that he was not entitled both to four week's paid holiday under Regulation 13 and to two week's further rest under section 18 (1) (j) of the 1933 Act as amended; but in other respects Regulation 17 does not throw any light on the central issue. It only applies to a case in which a worker is entitled (in a case involving annual leave) to annual leave under the Working Time Regulations – which is, of course, the central issue in this case.
55. The Working Time Regulations, unlike the Working Time Directive, contain in Regulation 2 (1) a definition of "worker", which we have set out at paragraph 31 above; that definition, if considered on its own, would appear to include any individual, including a child, who had entered into or worked under a contract of employment or a contract for services. However, it is, in our judgment, important that Regulation 2 (1) specifically defines an adult worker (as a worker who has attained the age of 18) and a young worker (as a worker who has attained the age of 15 but not the age of 18 and who is over compulsory school age) but contains no specific reference to any worker who is not an adult worker or a young worker, i.e. to a child.
56. Further, it is surely not a coincidence that the definition of child in section 30 (1) of the 1933 Act as amended "dovetails" with that in the Working Time Regulations of a young worker; the former is a person who is not over compulsory school age; the latter is a person who is. In both the Working Time Regulations and the 1933 Act as amended "compulsory school age", and, in Scotland, "school age", is to be construed in accordance with the same statutes, section 8 of the Education Act 1996 in England and Wales and section 31 of the Education (Scotland) Act 1980 in Scotland.
57. There is a clear explanation of the absence of any definition in the Working Time Regulations of child or child worker arising from the text of those Regulations themselves; it is that there is no specific reference to either a child or a child worker in those Regulations and therefore no call for any such definition; but this fact also does not of itself resolve the construction issue which is central to this appeal; for the absence of any such specific reference might indicate the absence of any intention to encompass children in the definition of worker in the Working Time Regulations; or alternatively it might do no more than demonstrate that, while children working under a contract of employment or contract for services are intended to fall within that definition of worker, no specific provisions were intended to apply in the case of children who are affected only by those provisions of the Regulations which are not specifically denoted as applying to one or more of the specific classes of workers identified by the Regulations.
58. In order to decide between those two alternatives, it is necessary in our judgment to look at the Regulations in some detail, and at the provisions therein which provide the principal entitlements conferred by those Regulations and to see to what extent, in the case of children, entitlements of the same nature are to be found in the 1933 Act as amended. The principal entitlements provided by the Regulations are maximum weekly working time, limitation of night work, weekly rest periods, rest breaks during the working day and holidays. We take each of these entitlements in that order, as follows: -

(i) Regulation 4 (1) of the Working Time Regulations provides that, unless the employer has first obtained the worker's agreement in writing to perform such work, a worker's working time shall not exceed an average of 48 hours for each 7 days; if "worker" includes a child, this provision would apply to a child; Regulation 4 is not limited to any of the specific categories of worker defined in Regulation 2 (1). This would appear to be the case even though (a) there are more restrictive limitations upon a child's hours of work in section 18 (h) of the 1933 Act as amended and (b) such a child would not be able to enter into any agreement as contemplated by Regulation 4 (1) because of the provisions of section 18 (1) (h) of that Act (irrespective of any problem of contractual capacity). None of the remaining provisions as to working time in Regulation 4 or in Regulation 5 resolve this difficulty; nor is it necessarily resolved by reference to Regulation 17.

(ii) The provisions of Regulation 6 apply to night workers; the definition of "night worker" does not exclude children; a night worker is a worker who works at least 3 hours of his daily working time during night time (i.e. between 11.00pm and 6.00am in the absence of a relevant agreement as defined) or is likely to work during night time in other circumstances. A child cannot work during night time as so defined; section 18 (1) (c) forbids the employment of a child before 7.00am in the morning or after 7.00pm in the evening save that a local authority may make byelaws authorising the employment of children for not more than one hour before the commencement of school hours on any day on which they are required to attend school, pursuant to section 18 (2) (a) (ii). None of the other provisions relating to night work of Regulations 5, 6 and 7 resolve these difficulties.

(iii) (a) Regulation 10 (1) of the Working Time Regulations provides that an adult worker is entitled to a rest period of not less than 11 consecutive hours in each 24 hour period (consistently with Article 3 of the Working Time Directive); Regulation 10 (2) provides that in the same 24 hour period a young worker is entitled to a rest period of not less than 12 consecutive hours; this is in excess of the 11 hours required by Article 3 of the Directive. However, there is no provision at all for any rest period in the case of a child who, if the Working Time Regulations apply to him, is a worker but neither an adult worker nor a young worker.

(b) The same situation applies in the case of weekly rest periods, as prescribed by Regulation 11. An adult worker is entitled to an uninterrupted rest period of at least 24 hours in each 7-day period or two such periods or one similar period of not less than 48 hours in each 14-day period. There is no provision at all for any such rest period in the case of a child.

(c) Similarly, in relation to rest breaks, as prescribed by Regulation 12, an adult worker is entitled prima facie to a rest break of at least 20 minutes in each 6 hours of working time; a young worker is entitled to a rest period of at least 30 minutes in each 4½ hours of working time; but there is no provision at all for any such rest break in the case of a child.

(iv) In each of the above three cases it would be expected, if a child were to be included within the definition of "worker", that there would be some specific provision giving to such a child at least the extended entitlement to rest provided to a young worker as compared with those provided to an adult worker, if not to a higher level of entitlement; yet there is no provision at all for a child.

(v) Save for Regulations 13 – 16 which provide for leave, the remaining Regulations deal with exclusions, special cases and other situations in which the principal entitlements conferred by the Regulations are, in various respects, excluded, adjusted or applied to particular classes of worker.

59. We now turn to Regulation 13 of the Working Time Regulations specifically. Regulation 13 provides the entitlement to four week's annual leave to workers, rather than specifically to adult workers and young workers. However, we see no reason why this difference between Regulation 13 and Regulations 10, 11 and 12, together with Regulations 4 and 6, which do not seem apt to apply to children for the reasons we have set out, should be taken to denote an intention on the part of parliament to include children within Regulation 13 but not within those other Regulations. It appears to us much more likely that Regulation 13 does not refer to adult workers or young workers but simply to workers because it was not desired to grant a young worker any right to annual leave in excess of the minimum four weeks required by Article 7 of the Working Time Directive.
60. If Regulations 4 to 13 are considered together, as in our judgment they should be, as a coherent and cohesive set of provisions conferring entitlement in respect of maximum working time, breaks, rests and leave, the term "worker" in Regulation 13 need not, and indeed in our judgment should not, be taken as intended to include children.
61. It is next necessary to consider the relevant provisions of the Young Persons' Directive and of section 18 (1) of the 1933 Act as amended in more detail, as follows: -

(i) So far as working time for children is concerned, Article 8 (1) requires Member States to limit the working time of children to:

(a) 8 hours per day and 40 hours per week for work performed under a combined work/training scheme or an implant work experience scheme;

(b) 2 hours on a school day and 12 hours per week in term time subject to a daily maximum of 7 hours or 8 hours in the case of children over 14;

(c) 7 hours per day and 35 hours per week for light work performed by children over school age or, in the case of those over 15 and over school age, 8 hours a day and 40 hours per week.

These requirements are manifestly more stringent than those set out in Regulations 4 and 5 of the Working Time Directive. They were enacted into domestic law, but with greater stringency, by section 18 (1) (d), (g) and (h) of the 1933 Act as amended which restrict the employment of a child to 2 hours on any day on which he is required to attend school, to no more than 8 hours (5 hours if under 15) on a Sunday or a day on which he is not required to attend school and for no more than 35 hours (or if under 15, 25 hours) in any week in which he is not required to attend school.

(ii) As to night work, Article 9 of the Young Persons' Directive sets out requirements which were brought into effect in domestic law with greater stringency by section 18 (1) (c) of the 1933 Act as amended.

(iii) Similarly, rest periods for children required by Article 10 and breaks required by Article 12 of the Young Persons' Directive are, in the case of children, brought into effect in domestic law by section 18 (1) (d), (e), (g) and (i) of the 1933 Act as amended; the rest period required by Article 10 in the case of Member States taking advantage of any of the options in relation to work by children contained in Article 4 must be a minimum of 14 consecutive hours in each 24 hour period; this is achieved by the provisions in section 18 (1) restricting the employment of a child to no more than 8 hours in any day which is not a school day and 2 hours of any day which is a school day. These rest periods are greater than those provided for by the Working Time Regulations. While Article 12 of the Young Persons' Directive requires a daily break of 30 minutes where daily working time is more than 4½ hours; section 18 (1) (i) provides for a rest break of 1 hour if a child is required to work for more than 4 hours in any day. This requirement is more stringent than that in the Working Time Regulations.

(iv) The Young Persons' Directive, by Article 11, provides for annual rest which is to consist of a period free of work included, so far as possible, in school holidays for children who are of compulsory school age; the obligation thus imposed on Member States in relation to children is discharged in domestic law by section 18 (1) (j) which we have set out earlier in this judgment and which provides for at least two consecutive weeks without employment during school holidays.

62. It can be seen that, in relation to working time, night work and rest periods the Young Persons' Directive expressly lays down the requirements which Member States are obliged to introduce into domestic law for the protection of children, which requirements have been met domestically by the provisions of section 18 (1) of the 1933 Act as amended. The requirements of the Young Persons' Directive and/or the provisions of section 18 (1) of the 1933 Act as amended are in many respects more stringent than those set out in the Working Time Regulations; and in some areas the Working Time Regulations do not appear to enact into domestic law any such requirement in the case of children as opposed to young workers and adult workers. It is, further, clear that the Young Persons' Directive requires the provision for annual rest in the case of children but does not specify the length of such rest in each year; the Directive leaves the length of such rest to Member States.
63. Accordingly it appears to us to be clear that the Young Persons' Directive has laid down minimum requirements for the domestic law of Member States in the case of children, including annual and other breaks, which requirements have been effected, usually in more stringent terms, in our domestic law by the amendments to section 18 of the 1933 Act, including section 18 (1) (j).
64. In contrast the provisions of the Working Time Regulations, in our judgment, seek to bring into effect in domestic law the provisions of the Working Time Directive which apply to adult workers and young workers. We do not see our conclusion as to the provisions of domestic law as inconsistent with the purposes and provisions of the relevant community law, but even if there was such an inconsistency, we are persuaded, cumulatively, by the points which we have set out above, that, on the proper construction of the Working Time Regulations and particularly when they are considered together with the provisions of section 18 (1) of the 1933 Act as amended, the expression "worker" in those Regulations was not intended to include children, who were intended to be provided for and who are provided for by separate legislation, i.e. by section 18 (1) of the 1933 Act as amended.
65. For those reasons we disagree with the conclusions reached by the Tribunal on the central construction issue. We have explained why, in our judgment, the Working Time Regulations, when considered as a whole, can be seen not to have been intended to apply to children as opposed to young workers; and, while the 1933 Act as amended does include criminal sanctions for breach of the relevant provisions, we have no doubt that the amendments effected by the Children (Protection at Work) Regulations 1998 were intended to create in children contractual rights enforceable without resort to the common law and that the provisions of 18 (1) are so enforceable.

Conclusions

66. For the above reasons we have come to the conclusion that Graham was not a worker who was entitled to the benefits, including annual leave, provided to adult workers and young workers under the Working Time Regulations but was a child entitled to the benefits provided by section 18 (1) of the 1933 Act as amended including a minimum of two consecutive weeks of annual rest in any one year, to be taken during school holidays, pursuant to section 18 (1) (j) of that Act.
67. Accordingly this appeal is allowed; and Graham's claim for holiday pay is dismissed.