Appeal No. EAT/1212/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 March 2001

Before
MISS RECORDER ELIZABETH SLADE QC
MR K EDMONSON JP
MRS R CHAPMAN

S J CLARKE 	APPELLANT

MR G R SWALE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

MISS RECORDER ELIZABETH SLADE QC:

1.	This is a preliminary hearing of an appeal by S J Clarke Building and Maintenance against the decision of an Employment Tribunal which made an award of holiday pay to a Mr Smale who had been engaged to do bricklaying work for the firm.  Mr Clarke has not appeared today.  When contact was made with him by telephone he informed this Employment Appeal Tribunal that he was unaware of the date of today’s hearing but he is content for the matter to proceed in his absence.  An ELAS representative was here ready and waiting to assist him in this appeal but, unfortunately, by reason of the rules of the ELAS scheme, he is unable to proceed to represent him in his absence. It is in those circumstances we will consider the preliminary hearing of the appeal on the papers. 

2.	In his Notice of Appeal, Mr White, on behalf of Mr Clarke, raises two principal grounds of appeal.  First, that the agreed rate of pay which was paid to Mr Smale included payment in respect of holiday and, second, that Mr Smale had not worked for a continuous period of 13 weeks before taking his first week’s holiday and therefore was not entitled to paid holiday.  From the Tribunal’s Decision, it is apparent that it treated Mr Smale’s complaint as one of failure to make payment in respect of periods of leave actually taken.  From the Decision it appears that Mr Smale had taken one week’s holiday in September of 1999 and a period of 10 days plus Bank Holidays in the period from 14 December 1999 to 4 January 2000.  

3.	The Tribunal considered what the entitlement of Mr Smale to holiday was and decided that he had an entitlement under the Working Time Regulations 1998 to 4.04 days in the period up until November 1999 and thereafter when the Regulations changed, to a period of 6.6 days.  It is therefore apparent from the Tribunal’s own decision that in its own terms, the applicant had taken more holidays than that to which he was entitled, however, they found that he had not been paid in respect of that holiday.  It seems to us, that properly analysed, the complaint brought to this Tribunal was in respect of failure to pay for holiday actually taken rather than in respect of holiday not allowed and accrued to at the termination of employment.  Having regard to what is, in our view, strongly arguable to be the correct position, the complaint for a failure to make payment in respect of the holidays actually taken should have been made pursuant to Regulation 30(2) before the end of the period of three months, beginning with the date when the payment should have been made.  

4.	In our view, there is a strong argument that so analysed, that this originating application before the Tribunal was out of time.  The Tribunal would have had discretion to extend time if it was satisfied that it was not reasonably practicable for the complaint to be presented within time.  However, it appears that the Tribunal did not approach the matter on that basis, we note that the applicant was represented by a Trade Union representative.  If the Tribunal had been concerned with whether they should exercise their discretion to extend time, no doubt they would have enquired as to what advice was available to the applicant at the time when he was not paid for the holiday he had taken.

5.	Although this point is not a matter raised in the letter of appeal, it is a point going to jurisdiction.  This is an unrepresented appellant and we consider it right that the matter should be raised and go forward and be considered at a full hearing.  

6.	As for the other matters raised in the letter of appeal, insufficient continuous employment and payment in respect of holiday included in salary ordinarily paid, we consider that those too should go forward for consideration at a full appeal.  It may be arguable that the rules on continuity of employment for the purpose of the general employment protection legislation do not apply for the purpose of the Working Time Regulations. 

7.	Further, so far as the payment is concerned, that is an issue which was raised in the Notice of Appearance before the Employment Tribunal in that, in the IT3 it is asserted that the Applicant “gave us, a signed quote accepting that his NI and holiday pay was included in the price per metre on his quote”.  By reason of Regulation 16(5) of the Working Time Regulations, any contractual remuneration paid to a worker in respect of a period of leave goes towards discharging any liability of the employer to make payments under the Regulations.  Whilst one does not know what material was before the Tribunal on this issue, it is a point which was raised in the notice of appearance and does not seem to have been expressly dealt with in the Tribunal’s Decision.  For those reasons, we consider that it merits going forward as well to the full appeal.  

8.	We give permission to amend the grounds of appeal and we strongly suggest that Mr Clarke, if he wants to pursue this matter, does that.  The Chairman’s notes of evidence on the issue of whether there was an agreement that the remuneration paid to Mr Smale included payment for holiday and, if so, how much should be produced.

TIME ESTIMATE 2 HOURS, LISTING CATEGORY C.