Walker v Co-Operative Insurance Society [2003] EWCA Civ 632

Case No A1/2002/1132[2003] EWCA Civ 632
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Peter Clark)
Venue Royal Courts of JusticeDate Friday, 11th April 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE PETER GIBSON
LORD JUSTICE CHADWICK
LADY JUSTICE HALE
Between
ANDREW WALKERAppellant-v-
Between
CO-OPERATIVE INSURANCE SOCIETYRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR J SYKES (instructed by Graham Bash & Co, London E5 9QH) appeared for Appellant.MR J HAND QC and MR O SEGAL (instructed by CIS Compliance Department, Manchester M60 OAL) appeared for Respondent.
J U D G M E N T(As Approved by the Court)
Crown Copyright©Friday, 11th April 2003J U D G M E N T

LORD JUSTICE PETER GIBSON:

The

[1]appellant, Andy Walker, appeals from the order made on 15th March 2002 by the Employment Appeal Tribunal ("the EAT") dismissing his appeal from the decision of an Employment Tribunal sitting at Stratford ("the Tribunal"). By that decision entered in the Register on 8th May 2001 the Tribunal dismissed Mr Walker's complaint that he had not been properly paid in accordance with the Working Time Regulations 1998 ("the WTR"). Permission for Mr Walker to appeal to this court was refused on paper by Pill LJ, but on a renewed application for permission, Mr Walker was allowed by Pill and Chadwick LJJ to proceed with his appeal primarily on the ground that a point of general interest and importance arises. That point relates to the computation of holiday pay under the provisions of Regulation 16 of the WTR and sections 221 to 224 of the Employment Rights Act 1996 ("the 1996 Act").[2]Mr Walker was employed by the respondent, Co-operative Insurance Society Ltd ("CIS"), as a full-time insurance agent from 21st February 1991 until 17th May 2000 at CIS's District Office at Barking, and later at Romford. Each District Office is managed by a District Manager who, with sales managers, is responsible for supervising the insurance agents attached to the District Office. CIS's agency force is its only channel for the distribution of its products and its agents call upon customers in their homes to service existing business and discuss future financial planning requirements.[3]CIS's full-time agents are employed in accordance with the standard Agent's Agreement, incorporating terms of appointment which are the terms of a collective agreement between CIS and the trade union recognised by CIS for collective negotiations on behalf of full-time agents, the Union of Shop, Distributive and Allied Workers. It is a condition of employment by CIS that agents must purchase the "book interest" in their agency from the outgoing agent. That interest is the right of the agent to service the agency in a specified area on behalf of CIS and to receive commission and procuration fees from business on that agency.[4]Clause 5 of the Agent's Agreement set out the duties and obligations of the agent. They included:
"5.2 The Agent will meet the requirements of CIS for customer service in respect of the Agency and in particular will 5.2.1 collect all premiums due under industrial assurance policies and any other premiums that are required to be collected from the customer; 5.2.2 deliver all certificates and other documents required by CIS to be delivered to the customer; and 5.2.3 deal with all claims, enquiries and complaints in accordance with any relevant procedures."
[5]Under paragraph 4 of the Terms of Appointment the agent was informed:
"You are expected to work such hours as may be necessary for the proper performance of your duties."
[6]Under paragraph 5 his remuneration was payable in accordance with the provisions of Schedule 1 to the Terms of Appointment. Paragraph A.1 of that Schedule provided that he was entitled to a basic salary, an expense allowance, procuration fees for new business obtained and commission on business attributable to his agency.[7]The basic salary comprised a fixed element of £90.07 per week and an additional element of £30 per week. This was based on the book value of his agency and computed in accordance with Schedule 2 to the Terms of Appointment (being 0.2% of the book value per week, calculated annually; but if there is a sale or purchase of an agent's debit, the amount payable is to be recalculated immediately). He also received an expense allowance of £14.97 per week, but the bulk of his remuneration was made up of procuration fees and commission. These are calculated as percentages, specified in Schedule 2, of the initial or ongoing premiums and become payable when the premiums are processed by CIS. Where a customer pays a non-life single premium or invests in a single premium pension or unit trust, the agent is entitled to the whole of his procuration fee and commission up-front. Where premiums are paid periodically, the agent is entitled to equal instalments of his procuration fee and commission. In addition, an agent classified as meeting performance standards, as Mr Walker was, if satisfying particular conditions, is entitled to receive what is known as Non-Life Bonus in accordance with paragraph G1(i) of Schedule 1.[8]CIS has elaborate procedures governing payment to its agents. The year is divided into four weekly accounting periods, each week in that accounting period being lettered A, B, C or D. B and D week Mondays are the chief office accounting dates on which all accounts are notionally processed by CIS. All accounts in fact processed during an A or B week are notionally processed on B week Monday, and all accounts in fact processed during a C or D week are notionally processed on D week Monday. An earnings statement is issued and payment made to the agent every two weeks, a fortnight after the relevant chief office accounting date. When the customers' money is paid directly to CIS, those arrangements determine when the agent receives the procuration fees and commission to which he is entitled.[9]However, where the agent collects money in cash or by a cheque from the customers, the agent accounts for his collections on a four-weekly basis, with the result that every other earnings statement (issued every two weeks) reflects the processing by CIS (two weeks earlier) of the agent's four-weekly account, while alternate earnings statements include no procuration fees or commission relating to the premiums collected by the agent. As approximately 60% of premiums are collected by the agent and not paid directly to CIS, this has the effect of alternately increasing earnings and reducing earnings. If an agent is about to take a period of annual leave which would coincide with his four-weekly accounting date, he will generally make the collections forming part of that account in advance and, when necessary, submit an early account.[10]CIS operated that accounting procedure and payment system without change during periods of the agent's leave. Mr Walker was entitled under paragraph 6 of his Terms of Appointment to 23 days holiday, that paragraph also providing:
"You will be paid your normal remuneration, including basic salary, during any period of holiday. ... (b) You should make arrangements for collection of all premiums falling due on policies in the Agency during the holiday period. ... (d) Where your holidays coincide with your normal paying-in day, you may be permitted to submit your account early at your District Manager's discretion."
[11]The contractual entitlement of Mr Walker to holidays has been affected by the WTR, implementing Council Directive 93/104/EC which provides:
"8. Every worker in the European Community shall have a right to a weekly rest period and to annual paid leave, the duration of which must be progressively harmonised in accordance with national practices."
[12]By WTR Regulation 13 Mr Walker was entitled to four weeks annual leave. By regulation 16:
"16. Payment in respect of periods of leave (1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13, at the rate of a week's pay in respect of each week of leave. (2) Sections 221 to 224 of the 1996 Act shall apply for the purposes of determining the amount of a week's pay for the purposes of this regulation, subject to the modifications set out in paragraph (3). (3) The provisions referred to in paragraph (2) shall apply- (a) as if references to the employee were references to the worker; (b) as if references to the employee's contract of employment were references to the worker's contract; (c) as if the calculation date were the first day of the period of leave in question; and (d) as if the references to sections 227 and 228 did not apply. (4) A right to payment under paragraph (1) does not affect any right of a worker to remuneration under his contract ('contractual remuneration'). (5) 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 this regulation in respect of that period; and, conversely, any payment of remuneration under this regulation in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period."
[13]Chapter II of Part XIV of the 1996 Act contains provisions for calculating the amount of a week's pay of an employee. Section 224 relates to employees, like Mr Walker, with no normal working hours. It provides so far as material:
"(2) The amount of a week's pay is the amount of the employee's average weekly remuneration in the period of twelve weeks ending- (a) where the calculation date is the last day of a week, with that week, and (b) otherwise, with the last complete week before the calculation date. (3) In arriving at the average weekly remuneration no account shall be taken of a week in which no remuneration was payable by the employer to the employee and remuneration in earlier weeks shall be brought in so as to bring up to twelve the number of weeks of which account is taken."
[14]It is apparent from Regulation 16 that a worker, like Mr Walker, with no normal working hours can complain of a breach of regulation 16(1) if he is not paid in respect of any holiday period at the rate of a week's pay calculated in accordance with section 224(2) and (3). Whether there is a breach may depend on the operation of regulation 16(5), requiring a set-off of contractual remuneration in respect of that period against any liability under the regulation in respect of that period. If there is a breach through the failure of the employer to pay what is due under Regulation 16, then the worker is entitled to a remedy, that is to say he can obtain from the Tribunal an order to pay what is due: see WTR regulation 30(1)(b) and (5).[15]It is also relevant to mention the obligation under section 1 of the 1996 Act of an employer to provide an employee with a written statement of particulars, including by section 1(4): "(a) the scale or rate of remuneration or method of calculating remuneration, (b) the intervals at which remuneration is paid ... ... (d) any terms and conditions relating to any of the following- (i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement ... to be precisely calculated)".[16]A breach of section 1 enables an employee to seek from the Tribunal under section 11 of the 1996 Act a determination of the particulars which ought to have been included in the statement of particulars.[17]I should also mention section 13 of the 1996 Act, which confers the right of an employee not to suffer unauthorised deductions from his wages.[18]On 31st March 2000 Mr Walker presented an originating application to the Tribunal in which he complained that his contract of employment was "illegal" because(1) he only received basic pay while on holiday instead of a sum which included new business previously booked by him;(2) he suffered a disincentive to take holidays and was obliged to work more than 48 hours per week. He amended those complaints on 14th April 2001. Under the heading "Shortfall in Holiday Pay under [the WTR]" he claimed that (1) by Regulation 16 he was entitled to be paid for the statutory minimum holidays on the basis of the average weekly remuneration received by him in the 12 weeks prescribed by section 224(2), and (2) he had been paid only basic pay during his periods of holiday entitlement. He sought a declaration pursuant to section 11 that CIS had failed to pay what was due, alternatively that there had been an unlawful deduction from his wages, and he asked for compensation. He also sought a declaration that his contract of employment should be amended to reflect his holiday pay entitlement.[19]On 27th April 2000 CIS filed its Notice of Appearance which it amended on 9th June 2000. It claimed that, in addition to the two elements of the basic salary, during holiday periods Mr Walker was paid procuration fees and commission and that it had discharged its liability under the WTR.[20]On 3rd July 2000 a second originating application was presented by Mr Walker alleging further shortfalls in his holiday pay after the date of his first originating application, plus other shortfalls in his holiday pay in 1998 and 1999.[21]The two originating applications were in effect consolidated. They were heard by the Tribunal in December 2000. Though both parties were represented by counsel, the issues were not agreed. For Mr Walker the following list of issues was put forward:(1) Should the holiday pay of Mr Walker, as a worker with no normal hours, be calculated in accordance with the 12-week formula of section 224(2)?(2) Had CIS failed to use that formula?(3) Was Mr Walker entitled to a determination under section 11 of the 1996 Act as to particulars which CIS should have given him in respect of the calculation of his holiday pay?(4) Did Mr Walker sustain loss by CIS not calculating his pay in accordance with Regulation 16?(5) Where premiums falling due for manual collection were collected by Mr Walker outside those periods, were payments of commission and procuration fees on such premiums made in respect of a period of annual leave within the meaning of Regulation 16(1)?(6) Had Mr Walker suffered a loss of pay in respect of commission and procuration fees which would have become payable on sales of CIS's financial products but for the taking of annual leave?(7) If so, what compensation is due?(8) Is Mr Walker entitled to a declaration that CIS made unauthorised deductions from his wages?[22]CIS produced a supplementary list of three issues:(1) For the purpose of Regulation 16(1), did CIS pay annual leave entitlement in respect of the total period of annual leave, as CIS contended, or each day of leave taken, as Mr Walker contended?(2) For the purpose of Regulation 16(5), if CIS must pay annual leave entitlement in respect of each day of annual leave, should the payments to be set off consist of annualised commission and procuration fees pro rata, as CIS contended, or all direct debits notionally processed by CIS whilst Mr Walker was on leave, as he contended?(3) What is the effect, if any, of (i) the Apportionment Act 1870 ("the 1870 Act"), and (ii) section 229 of the 1996 Act if section 224 applies in this case?[23]The issues identified by each party, and only those issues, were considered by the Tribunal. They noted in paragraph 10 that Mr Walker had indicated that:(i) if an agent is about to take a period of annual leave which would coincide with his collection and/or district office accounting date he would do the necessary collections in advance;(ii) the opportunities for increasing earnings by way of cold calling had diminished in recent years and in 2000 no business was generated through that method:(iii) he did not expect extra sums of money to be paid whilst he was on holiday.[24]The Tribunal made the following material findings of fact in addition to the matters to which I have referred earlier:(1) No Non-Life Bonus was received by Mr Walker in 1999 or 2000 (paragraph 11(ii)).(2) Where a premium on a policy attributable to an agency is paid monthly or quarterly, the agent's fee or commission is paid in equal instalments (i) of his procuration fee in respect of the first 12 months of premium payments, and (ii) of commission entitlement on each instalment during each year the policy continues or is renewed (paragraph 11(v)).(3) The fees and commission are paid to provide the substantial amount of the agent's income, which is generated by (amongst other things) the servicing of the product (paragraph 11(vi)).(4) All policies are based on a 12-month service period, all life and investment contracts on a two and a half year period; if the policies lapse or are discontinued, a proportionate recovery of the commission or fee can take place, and accordingly the final figures cannot be completed in the agent's year of account in which new policies are sold (paragraph 11(vii)).(5) Like any job which is essentially commission orientated, Mr Walker's pay reflected the history of his sales record, his fortnightly pay, as a consequence, reflecting a fraction (one twenty-sixth) of "a continually recalculated annual performance related bonus" (paragraph 11(x)).(6) Leave periods are of no consequence to the payroll department, which dedicates itself to the continuance of the recalculation (paragraph 11(x)).(7) To cater for the practicality of holiday expense and for the convenience of agents and clients, Mr Walker was entitled to collect money in advance of the usual date and to submit an early account (paragraph 11(xi)).(8) When Mr Walker was on holiday, his clients were left a contact number of the District Manager so that enquiries in respect of their current policies or new business could be dealt with. Further, facilities existed for making payments which were credited to his agency (paragraph 11(xii)).(9) In 1999 and 2000 Mr Walker's earnings were exceedingly similar whether the section 224(2) formula or the earnings statements were used to compute his salary. Mr Walker in his originating application gave £36,000 as his latest annual salary. If the section 224(2) formula is used for the 19 days' leave Mr Walker took between 13th January 1999 to 17th May 2000, his contractual pay exceeded the pay calculated by use of the formula by £54 (paragraph 11(xiii)).(10) No money in 2000 was generated by cold calling only. That produced a successful sale in less than five cases in 1999 (paragraph 11(xiv)).(11) In each agency there is an average of a thousand clients, with whom the bulk of the business is transacted (paragraph 11(xvi).(12) Lost opportunity to generate more business when an agent is away on holiday is highly insignificant (paragraph 11(xix)).(13) Normal payments of procuration fees throughout 52 weeks can be regarded as paid equally in respect of the 52 weeks (paragraph 11(xix)).(14) Procuration fees represent instalments of "percentage bonus" in relation to business transacted on a rolling annual basis based on planned canvassing carried out by the agent or on his behalf during that year; accordingly, they are apportionable in respect of that period of time (paragraph 11(xxvi)).(15) Prior to departing on holiday, agents are encouraged to complete a report on any canvassing drive within the agency area so that sales managers can pursue any prospects within the agency whilst the agent is on holiday (paragraph 11(xxviii)).[25]On issue (i) raised by Mr Walker, the Tribunal concluded that section 224 could not be relevant to the appropriate calculation of Mr Walker's holiday pay given the singular nature of his employment. They said it was difficult to envisage a fairer system of assessment than that employed by CIS. They adverted to the possibility of distortion by Mr Walker if the section 224(2) formula was used, and they held that his holiday pay should not be calculated in accordance with section 224. They continued (in paragraph 14):
"As a consequence the Tribunal has determined that the answer to issue (ii) is in the affirmative and the answers to issues (iii) and (iv) have to be in the negative. No loss can possibly arise as the continuing nature of the salary assessment is based upon a fair, logical and mutually advantageous contractual formula. Similarly, issue (v) has to be answered in the negative as well as, on the evidence, it cannot be entirely ruled out that such an opportunity might possibly pass an individual by but as is clear from the evidence in this case such a point must be realistically regarded as totally de minimis. Accordingly, no compensation is due for the purposes of issue (vi) and no declaration for the purposes of issue (vii) can proceed as unauthorised deductions have not been made and the breach of contract claim must also fail accordingly."
[26]They said (in paragraph 26) that there was absolutely no evidence to suggest that Mr Walker had lost out through not obtaining new business while away on holiday. They held that no unauthorised deductions had been made.[27]The Tribunal then expressed their conclusions on the issues raised by CIS. They said (in paragraph 16) on the first issue that they had concluded that CIS paid annual leave entitlement in respect of the total period of annual leave because CIS each fortnight, 26 times a year, paid Mr Walker an annualised amount of remuneration. The evidence, they said, demonstrated that whether on leave or at work, Mr Walker received the same level of remuneration and there was no breach of the WTR, "[t]he commissions and bonuses being paid on a rolling basis".[28]They referred to Mr Walker's argument that the system placed undue pressure on him not to take holidays and, if holidays were taken, to overwork to compensate, but concluded that Mr Walker (whom they described as not a witness who inspired confidence) exaggerated in his evidence. They rejected Mr Walker's argument and accepted CIS's argument on the first of CIS's issues. They referred to the CIS system as reflecting advantages to Mr Walker, for example by treating procuration fees and commission on a rolling basis without delaying such fees or commission until there was no possibility that a purchased policy could be cancelled, and protected CIS from potential manipulation of its payment system to produce disproportionate holiday pay.[29]If wrong on CIS's first issue, the Tribunal concluded that for the purposes of Regulation 16(5) the evidence demonstrated that the payments made on an annualised basis extinguished CIS's liability to Mr Walker. The Tribunal accepted the evidence of Stephen Riley, the agency superintendent (sales) for CIS, whom they found to be an impressive witness. He said that commission was not paid to an agent purely in relation to collections, but was also recompense for managing the business generally throughout the year. Hence the Tribunal's conclusion (in paragraph 24 of their decision) that "the reality is that Mr Walker is an insurance agent paid commission on an annualised basis in respect of the servicing and selling of the material customer business". His commission payments were in respect of the entire 52 weeks, including the annual leave period. They said (in paragraph 27):
" ... any obligation to pay under Regulation 16(5) is entirely cancelled out by the annualised calculations that produce the sums payable during the time the holiday is taken."
They accepted that section 2 of the 1870 Act applied and that the procuration fees and commission were payments in the nature of income, accrued daily and were apportionable in respect of time. They said that the payments could be offset pro rata to cancel out any claim Mr Walker might have for the purpose of section 224 and 229. The Tribunal therefore rejected all of Mr Walker's heads of claim.[30]Mr Walker appealed to the EAT, His Honour Judge Peter Clark presiding. In a judgment of admirable succinctness and clarity, the EAT accepted that the Tribunal erred in law in concluding that the formula in section 224(2) did not apply to the present case. They said that that error did not vitiate the Tribunal's decision because:(1) on the Tribunal's findings of fact the core contention of Mr Walker, that he had lost the opportunity to earn commission and procuration fees whilst on holiday, which loss ought to have been reflected in his holiday pay, was not made out;(2) the system of fortnightly pay, regardless of whether Mr Walker was on holiday or at work, based on a fixed basic wage and "a recalculated annual performance-related bonus", revealed no contractual distinction between pay whilst working and when on holiday;(3) applying the section 224(2) formula produced a figure for holiday pay slightly under the contractual payment; thus, applying the set-off provision in Regulation 16(5), Mr Walker was entitled to the slightly higher contractual holiday pay actually paid by virtue of Regulation 16(4).[31]The EAT therefore held that the Tribunal were correct in finding no breach by CIS of Regulation 16(1) to found a claim based on a failure by CIS to make a payment due under the WTR or a claim under section 13 for unlawful deductions from wages.[32]The EAT further held that the particulars provided to Mr Walker by way of his contractual documentation adequately stated his entitlement to holidays and holiday pay. They considered a submission for Mr Walker that Regulation 16(1) and (5) required the identification of the actual contractual remuneration paid to him in respect of the relevant period of leave. They referred to the passage (which I have quoted) in paragraph 29 above from paragraph 27 of the Tribunal's decision, and said that a phrase has been omitted, the sense of what the Tribunal were saying being that any obligation to pay under Regulation 16(1) is, pursuant to Regulation 16(5), entirely cancelled out. The EAT said that when read in that way, given the Tribunal's findings of fact, the statement was unexceptional.[33]The EAT found it unnecessary to decide the issue of the application of the 1870 Act, but dealt with certain other matters and concluded that the Tribunal's material conclusions on the facts as found were plainly and unarguably right. They therefore dismissed the appeal.[34]Mr Walker's appeal to this court is expressed in his Appellant's Notice as being on four grounds:(1) The Tribunal erred in failing to make a determination under section 11 of the particulars, which should have been given but were not given to Mr Walker by CIS, in respect of the calculation of his annual leave pay and in failing to give reasons for concluding that Mr Walker was not entitled to a declaration to amend the terms and conditions of his contract of employment.(2) The Tribunal erred in finding that the variable elements of Mr Walker's pay were properly to be regarded as akin to an annual bonus apportionable throughout the year, and in failing to give reasons for that finding.(3) The Tribunal erred in finding, as an alternative basis for their decision, that section 2 of the 1870 Act applied.(4) The Tribunal erred in determining issues of quantum without hearing argument.[35]Mr Joe Sykes, appearing for Mr Walker, in a supplemental skeleton argument has identified as the principal question whether Mr Walker's pay in respect of his periods of annual leave complied with Regulation 16(1), (2) and (5).[36]Mr Sykes has taken us through what he rightly calls the mixed bag that constitutes the pay of an agent like Mr Walker, containing variable elements which make his pay variable each fortnight. He points out that there is no express contractual provision for a Regulation 16(2) calculation and that such calculation cannot be applied as Schedule 1 to the Terms of Agreement stands. He accepts that basic pay is paid routinely and procuration fees and commission on premiums received directly by CIS are credited to the agent while he is on annual leave, but says that manual collections cannot be made by him while on annual leave. He argues that to collect the premiums attributable to the period of his leave manually before or after his holiday would take the agent time and involve effort, and he submits that that may impact to prevent the agent receiving normal remuneration for the period of annual leave and that the extra time and effort is not remunerated. He submits that without rules in Schedule 1 for a section 224 calculation of one week's pay payable for a period of annual leave, and with the variable of manual collections not made while he is on leave potentially creating a dip in commission, a potential result was that Mr Walker would be paid less by contract for a period of annual leave than he would be by Regulation 16(2), as he puts it. Accordingly he submits that Mr Walker's contract did not comply with Regulation 16(2), CIS failing to calculate, for every period of annual leave, the apportionable part of one week's pay based on the average of the previous 12 weeks' pay to ensure Mr Walker was paid for his holiday at the level of his normal remuneration.[37]Mr Sykes submitted that the Tribunal, in taking a different view of the contract, made findings of fact not supported by the contract and relied on those findings for their conclusions. He identified those findings as the findings in paragraph 11(x), (xi), (xiii), (xiv) and (xxvi) and he said that they were perverse. He also said that certain conclusions based on those findings were perverse. Those conclusions were(1) that section 224 did not apply to Mr Walker's contract,(2) that Mr Walker was therefore not entitled to the section 11 particulars and had not sustained loss,(3) that the possibility of losing the opportunity to increase his earnings from commission and procuration fees while on holiday was de minimis,(4) that Mr Walker was due no compensation, and(5) that he was not entitled to declaratory relief.[38]Undoubtedly there are infelicities in the way the Tribunal have expressed themselves. I have already mentioned one omission (from paragraph 27 of the Tribunal's decision) noted by the EAT. In addition, something obviously went wrong in the third sentence of paragraph 14. The words "such an opportunity" are not explained and do not appear to have anything to do with issue (v) of Mr Walker's issues. Those words appear to relate to issue (vi). I do not accept Mr Sykes' submission that the Tribunal was admitting that manual collections outside annual leave may preclude a section 224 calculation. Rather, it seems to me that the Tribunal have by mistake left out their answer to issue (v) and the references to issues (v), (vi) and (vii) were intended to be references to issues (vi) (vii) and (viii). The Tribunal must have intended to give an affirmative answer to issue (v) and a negative answer to issue (vi). The question of compensation is raised by issue (vii), not (vi), and the question of a declaration as to unauthorised deductions arises not on issue (vii) but on issue (viii).[39]Further, it is unfortunate that the Tribunal refer in a number of places, as I have recorded, to a bonus or bonuses. The EAT also refer to a recalculated performance-related bonus, as I have noted. In paragraph 11(ii)(f) the Tribunal have acknowledged that the Non-Life Bonus is largely irrelevant. The evidence was that Mr Walker last qualified for a Non-Life Bonus in 1998. What they mean by "bonus" is perhaps shown most clearly in paragraph 11(xxvi) when they refer to procuration fees representing "instalments of percentage bonus". It is plain that "bonus" is not being used in any technical sense. It is also unfortunate that the Tribunal refer to a recalculation, when it is plain that all that they mean is that there is a calculation throughout each year on a rolling basis.[40]There is an immensely complicated calculation of the various elements in Mr Walker's remuneration for each of the 26 occasions in a year when he was paid, and I believe that no more than that was intended by the sentence in paragraph 11(x) when the Tribunal said that his fortnightly pay represented one twenty-sixth of a continuing recalculated performance-related bonus.[41]To my mind, when the decision is read carefully, the Tribunal have given adequate reasons to explain why they rejected Mr Walker's claims. The focus for the argument for Mr Walker as now presented by Mr Sykes, who did not appear below, has shifted somewhat from the focus below and even from the focus of the skeleton prepared for this appeal by Mr Sykes' predecessor as counsel for Mr Walker.[42]Mr Sykes' argument relies on the failure to apply the section 224 formula and hence to comply with regulation 16, which, he says, might have produced more from Mr Walker. Whereas before the Tribunal and the EAT the complaint concentrated on Mr Walker losing out because of the opportunities lost during a holiday period for him to obtain further business -- a hopeless argument in view of the finding of fact to the contrary by the Tribunal that that element was "highly insignificant" -- Mr Sykes has concentrated on the absence of manual collections by Mr Walker while on holiday. The highest he can put it is that Mr Walker may have lost out. He complains, as I have indicated, of the extra time and effort required from Mr Walker before he went on holiday and after he came back from holiday to make those collections. Again that seems to me to be an impossible argument in the light of the facts. I have noted that the Tribunal recorded Mr Walker as indicating that if an agent is about to take a period of annual leave which would coincide with his collection and/or district office accounting date, he would do the necessary collection in advance. Further, he was allowed to leave it to others to make the collections on his behalf. As for the additional time taken in making collections outside the holiday periods, that has to be considered against the provision in paragraph 4 of the Terms of Appointment that he was expected to work such hours as might be necessary for the performance of his duties. He was not paid by the hour. In any event, the time devoted by an agent on making collections is small. Mr Riley in his evidence said that typically an agent would devote six days to collecting in each four-weekly period. In my judgment, on the evidence there is simply no factual basis for any assertion that Mr Walker lost out through being unable to collect the procuration fees and commission during the holiday period.[43]Further, the Tribunal have found in paragraph 11(xiii) that the application of the section 224 formula to arrive at an average over the 12-week period prescribed by section 224(2) does not show that Mr Walker has suffered any loss through receiving his contractual pay. On the contrary, Mr Walker has benefited (by a very small amount), his contractual pay being greater than the figure produced by the application of the section 224 formula. Mr Sykes submitted that such a finding by the Tribunal was unsatisfactory because it was arrived at without hearing arguments and was contrary to the Tribunal's direction that submissions should be confined to the merits. He also said that the conclusion was not explained as it should have been. But it was Mr Walker, by his legal representatives, who specifically raised the issue, issue (4), whether Mr Walker had sustained loss by CIS not calculating his pay in accordance with Regulation 16. A separate issue was the quantum issue, issue (7), as to what compensation was due.[44]On issue (4) each side put in figures and calculations. Mr Walker put in many pages devoted to that issue. CIS put in evidence through Mr Riley. In paragraph 35 of Mr Riley's witness statement he expressly refers the Tribunal to CIS's calculations leading to the figure of £53.89, being the excess of the contractual pay over the figure produced by the section 224(2) calculation.[45]We are told by Mr Hand that there was an agreed schedule of calculations. Mr Sykes was unable to confirm that. But whether or not the schedule was agreed, it is plain that there was evidential material before the Tribunal on which they could properly conclude that Mr Walker was no worse off by CIS applying the ordinary contractual terms. That is not a result I find in any way surprising, having regard to the basis on which the contractual pay is calculated.[46]I come back to the questions raised on this appeal. First, on Mr Sykes' principal question, in my judgment the Tribunal, although wrong not to accept the applicability of section 224, were right on the material before them and on their findings of fact to find no breach of regulation 16(1). That is because weekly pay, calculated in accordance with section 224 and applicable to the holiday period, did not exceed the contractual pay actually paid by CIS, and so, on the application of Regulation 16(5), there was no breach of Regulation 16(1) and nothing is payable under Regulation 30. There was an adequate explanation by the Tribunal of how they arrived at that conclusion. There was no unlawful deduction from Mr Walker's wages, and so it is unnecessary to consider the application of the 1970 Act.[47]Second, on the question whether Mr Walker was entitled to complain that he had not received the statement of particulars to which he was entitled under section 1 and on the question whether CIS should now be required to give such particulars under section 11, Mr Sykes submitted that someone in Mr Walker's position with no normal working hours and receiving performance-related pay cannot know what holiday pay he would receive by looking at the contract of employment. I accept that there may be some uncertainty in predicting what pay an agent like Mr Walker would receive in respect of the holiday period, but the requirement in section 1(d)(i) is of particulars to enable the entitlement to holiday pay to be calculated, not to be predicted. In my judgment, the contract of employment is adequate in that respect. Details of what the agent's entitlement to commission and procuration fees is can be found in Schedule 1, even though I accept that the actual amount of entitlement in respect of any holiday period will not be easy to calculate; but that does not amount to a failure to comply with section 1. It is inevitable, given the nature of the elements of the pay packet in the case of an agent like Mr Walker, that the multiplicity of items which go to constitute the pay that he will receive in a particular week cannot be forecast; but, nevertheless, it can be calculated by reference to the contents of the contract of employment. Accordingly, I find no breach of section 1, and so there is no entitlement under section 11 for any amendment to the statement of particulars.[48]For these reasons, I have reached the clear conclusion that this appeal must be dismissed.

LORD JUSTICE CHADWICK: I agree.

LADY JUSTICE HALE: I also agree.

Order

Appeal dismissed with costs summarily assessed in the sum of £15,568.75.

Cited in 1 later judgment