Millar v Bowden [1996] UKEAT 129_95_1505

EAT
Millar v Bowden
[1996] UKEAT 129_95_1505 · 1996-05-15

JUDGE CLARK:

Mrs Millar employed Miss Bowden to act as nanny to her children from March 1994 until she dismissed her summarily on 22 July 1994.Miss Bowden presented a complaint to an Industrial Tribunal claiming one week's pay in lieu of notice and accrued holiday pay. Both claims were resisted.The matter came before a Chairman sitting alone at the Plymouth Industrial Tribunal on 15 December 1994. He dismissed the claim for pay in lieu of notice, but awarded the sum of £176 in respect of accrued holiday pay. Against that decision Mrs Millar now appeals.It was an express term of the contract of employment that Miss Bowden would be entitled to four weeks paid holiday per annum. It was common ground that she had taken no paid holiday leave during the employment. Was she, on termination, due a pro rata payment representing her accrued holiday entitlement?The Chairman directed himself to the Court of Appeal decision in Morley v Heritage Plc [1993] IRLR 400 . Observing that that case indicated there was no automatic entitlement to be paid for a holiday earned but not taken, he ordered payment of accrued holiday pay to be made. His reason for so doing is expressed succinctly in this sentence:
"2 ... In this contract the parties must have regarded the holiday entitlement as accruing month by month."
The question, what are the terms of the contract, is a question of law Pedersen v Camden Council [1981] ICR 674 .It has long been established that the courts will not imply a term that an employee is entitled to accrued holiday pay on termination of employment, in the absence of an express term to that effect Hurt v Sheffield Corporation [1916] 85 LJ KB 1684 .The Court of Appeal in Morley was invited to overturn Hurt . It declined to do so. Can such a term be properly implied? We think not. We note the unequivocal response of Sir Christopher Slade to a submission by Counsel for the Appellant in Morley at paragraph 42 of the report:
"... it is necessary to imply the term to give business efficacy to the contract. I hope I show no disrespect to this particular submission when I say no more than that in my view it is quite unsustainable. The contract works perfectly well without any such implication."
We take the same view in this case. In our judgment the Chairman was wrong in law to imply such a term. In those circumstances we shall allow the appeal and set aside the award.