United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	No appearance or representation by or on behalf of the Respondent

SUMMARY

Working Time Regulations

Employment Tribunal Decision was fatally muddled as to whether or not the Claimant was entitled to holiday pay or whether he had received advance payments. No adequate reasons given despite referral by the EAT for clarification.


 


HIS HONOUR JUDGE D SEROTA QC

1. This is the full hearing of an appeal by the Respondent from a Decision of the Employment Tribunal at Ashford, chaired by Mr Hall-Smith. The Summary Reasons were given on 9 December 2003, and Extended Reasons on 26 April 2004. Regrettably, both the Claimant and the Respondent are suffering from ill-health; neither of them is able to attend today and we have been asked, and of course we do, deal with the matter on the basis of the written submissions we have received.
2. The factual background to this appeal is as follows. The Claimant was employed as a PSV Fitter by the Respondent from November 1996 until July 2002. That was when the Claimant's GP had told him he could no longer work. He resigned and there was a conflict of evidence as to the circumstances of the resignation that was resolved in favour of the Respondent. The Employment Tribunal Decision ordered that the Claimant's claim for unfair dismissal should be dismissed on the basis that he had resigned. The Claimant's claim, on the basis of discrimination on the grounds of his disability, could not succeed because the Respondent employed fewer than 15 employees. The Claimant's complaint that he had been dismissed without written reasons was dismissed. A complaint under the Working Time Regulations was dismissed. The Employment Tribunal did, however, conclude that the Claimant was entitled to holiday pay accrued in the sum of £320 less the appropriate deductions for tax and national insurance. This was despite the fact that the Employment Tribunal appear to have concluded, at paragraph 27 of its Decision on the evidence, that two sums of £250 had been paid to the Claimant, which the Respondent maintained were in respect of advances on his holiday entitlement. The Employment Tribunal found, as we have said, he was entitled to £320, being five days at £64 per day.
3. The Respondent sought a review and the Chairman, in his response of 20 May 2003 at paragraph 9, says that in paragraph 24, the Employment Tribunal had not concluded that the £250 advances, of which two had been paid, had been in respect of holiday pay.
4. The matter came before the President on 15 July 2004. He stayed the appeal while the matter was referred to the Employment Tribunal with an invitation the Employment Tribunal should explain the basis of the facts that it found. The Employment Tribunal had found firstly that the holiday year began in April; and secondly it had found that the two sums of £250, paid by the Respondent in April 2002, had been accepted by the Claimant as an advance on his holiday pay. So on what basis was the further £320 payable?
5. The Chairman of the Employment Tribunal, Mr Hall-Smith, responded on 20 August 2004, and says there was an error in paragraph 24 of the Decision. The Employment Tribunal should have said that the Employment Tribunal did not conclude that the £250 paid twice had been accepted as an advance on holiday pay. He then went on to say that the Employment Tribunal had made the same error in paragraph 9 of the Chairman's explanation. That explanation is difficult to reconcile with paragraph 9 which corresponds, in fact, to what the Chairman said paragraph 24 of the Employment Tribunal Decision should have said.
6. The matter came before His Honour Judge McMullen QC on 8 September. He recommended that the case should be disposed of under Rule 3, and it was. But the
   Respondent sought to have the matter reconsidered under Rule 3(10) and the matter came, on
   22 February 2005, before His Honour Judge Clark, who referred the matter to a full hearing. His Honour Judge Clark was concerned at the findings made by the Employment Tribunal. On the one hand the Employment Tribunal had accepted the Respondent's evidence whenever there was a conflict yet, without any explanation, it now appeared to accept the Claimant's evidence, despite the fact that the Employment Tribunal had found that the Claimant, by reason of his illness, had a poor recollection and his evidence was less reliable than that of the Respondent. Furthermore, His Honour Judge Clark pointed out that there had been express evidence from a wages clerk, Mr Dean, which supported the Respondent's case. This evidence has not been referred to and no explanation has been given by the Employment Tribunal as to why the Respondent's evidence, and that of Mr Dean, was in fact rejected.
7. There are two issues raised on the appeal. Firstly, in relation to the finding as to holiday pay, and secondly, whether the Working Time Regulation 18 applied to the Claimant, because he was employed in the transport business. So far as this latter point is concerned, it seems to us that the Employment Tribunal's Decision was correct, and the only issue that we need to concern ourselves with is the issue relating to the holiday pay. It is apparent to us that the Employment Tribunal has had two bites at this cherry. Its findings are quite unsatisfactory. Even if it had intended at all times, as the Chairman says, to reject the Respondent's evidence and case in relation to the two payments of £250 that had been made in April 2002, no explanation is given by the Employment Tribunal as to why the evidence of the Respondent and of his wages clerk had been rejected. It is all the more surprising that there is no reference to this because the Employment Tribunal had been careful to state that, generally speaking, it had accepted the evidence of the Respondent and had found the Claimant, by reason of his disability, to suffer from poor recollection.
8. In those circumstances it seems to us that we have no option, for the reasons we have given, but to remit this matter for rehearing before a differently constituted employment tribunal, but limited to the issue as to whether or not the Respondent had in fact already paid the Claimant his entitlement to holiday monies of five days by reason of the payments that had been made in April 2002. We hope that the Claimant and the Respondent make as good recoveries in the near future from their illnesses and we allow the appeal to that extent.
9. We also have before us what appears to be an application for costs by the Respondent. We can see no basis upon which we can make an order for costs in his favour. There has been no conduct on the part of the Claimant that would justify an order for costs at this appeal being made against him and we decline to make any order.
10. As neither party is present, we consider that a transcript should be provided.