Spinner v HM Bennett (1971) Ltd [1998] UKEAT 1256_97_1012

EAT
Spinner v HM Bennett (1971) Ltd
[1998] UKEAT 1256_97_1012 · 1998-12-10

JUDGE PETER CLARK:

The Appellant, Mr Spinner was employed by the Respondent as an HGV Driver from 6 January 1993 until his resignation which took effect on 27 May 1997.The material issue which arose for determination by a Chairman sitting alone at the Southampton Employment Tribunal on 8 September 1997 to hear the Appellant's complaint of unauthorised deductions from his wages, was whether or not he was contractually entitled to 20 days accrued holiday pay.Prior to the hearing, at which the Appellant was represented by his trade union representative, Ms Sandle, and the Respondent by their solicitor, Mr Burfield, those representatives had agreed a Schedule of facts.Paragraph 2 of that Schedule read:
"2. The Applicant's contract was in the form of the document dated 8 February 1995 and acknowledged by the Applicant on 9 February 1995."
That Schedule was placed before the Chairman; the facts contained in the Schedule were agreed.The document dated 8 February 1995 was headed "Contract of Employment", but was in fact a statutory statement of Terms and Conditions of Employment (the Statement). The acknowledgement slip signed by the Appellant was an acknowledgement that he had received the Statement. It did not constitute a written contract of employment. Compare Gascol Conversions v Mercer (1974) ICR 420.The material part of the Statement of Terms is to be found in paragraph 7, which provided:
"7. HOLIDAYS (a) You are entitled to 15 days after the first completed years service, in each calendar year, to be taken at times convenient to the Company, in addition to the usual public holidays. (b) After two years service you will be entitled to a maximum of twenty days annual holiday. (c) During holidays you will be entitled to remuneration calculated as an average of your gross earnings and from employment with the Company during the last tax year. (d) On termination of your employment, your entitlement to accrued holiday pay will be in direct proportion to the length of your service during the calendar year in which termination takes place."
In addition to the Schedule and the Statement, the Chairman heard oral evidence from the Appellant and two other former employees of the Respondent, Messrs Gould and Whatmough.Each of those witnesses had made witness statements which were in evidence. The Appellant said at paragraphs 2 and 3 of his statement:
"2. I had a contract with of employment with the Company which sets out the details of my holiday entitlement. My interpretation of this was that holidays were accrued a year in arrears and that when I left I would therefore be paid the year's entitlement accrued from the previous year plus a pro-rata amount as per section 7(d) of my contract.
3. This was not just my own individual interpretation of my contract, which was only issued in written form in 1995. When I had started with the Company, the then Assistant Transport manager, Mr John Sheriff, outlined verbally what my terms and conditions would be which accorded exactly with my interpretation as just outlined. It is also my understanding that other individuals have received money for accrued holidays in this manner when they have left."Mr Gould, in his witness statement, said that he had been employed by the Respondent from 11 June 1990 until 10 May 1996.He had a contract of employment, as it was put in his witness statement, identical to the Appellant's. On leaving the employment in May 1996, Mr Gould had received 20 days holiday accrued from the previous year plus outstanding holidays accrued pro rata for the time worked in 1996. Mr Whatmough gave evidence in his witness statement to the like effect to that of Mr Gould.The Chairman dealt with the oral evidence at paragraph 4 of his extended reasons in this way:
"4. In his testimony (bundle A1, page 1,) Mr Spinner said that his interpretation of his contract of employment was that holidays were accrued a year in arrears and that when he left, he would be paid the year's entitlement accrued from the previous year plus a pro-rata amount in accordance with paragraph 7(d). When he started with the company, the then Assistant Transport Manager, Mr Sheriff, outlined verbally what his terms and conditions would be which accorded exactly with his own interpretation. It was his understanding that other individuals had received money for accrued holidays in accordance with his interpretation when they left the Respondents' employment. As Mr Spinner's evidence as to what Mr Sheriff told him was uncontradicted on behalf of the Respondents, and the evidence of Mr Gould and Mr Whatmough who confirm that they received such accrued holiday pay, supports him, I accept it."
However the Chairman went on to conclude that the wording of paragraph 7 of what he described as Mr Spinner's contract was clear. There was no entitlement to holiday during the first completed year of service; there was an entitlement to 15 days holiday in the second year, increasing to 20 days annual holiday after 2 years completed service. On termination, the Appellant was entitled to pro-rated holiday pay for the calendar year in which termination took place. Accordingly, he was not entitled to 20 days accrued holiday pay.In this appeal it is not suggested that the Chairman misconstrued the words of paragraph 7 of the Statement. The way the point was put in the skeleton argument prepared by Mr Linden and put before this Tribunal at a preliminary hearing held on 3 July 1998, was that the Chairman was wrong to proceed on the basis that the Statement represented the terms of the contract, when, on the evidence the Statement did not reflect the terms as to holiday pay orally agreed at the commencement of the employment in 1993. We note that that skeleton argument does not refer in terms to the Schedule of agreed facts, and in particular paragraph 2 of that Schedule.The Respondent took the point in the Answer that what the Appellant is seeking to do is to argue a different case before the Appeal Tribunal from that presented below.In Jones v Burdett Coutts School (1998) IRLR 521 an Employment Tribunal rejected the Applicant's complaint of unfair dismissal on the ground that there had been no dismissal. On appeal the Employment Appeal Tribunal allowed the appeal, correctly construing the provisions of Section 84(1) of the Employment Rights Act 1996, and remitted the case to a fresh Employment Tribunal. On the employers appeal the Court of Appeal held that the point on which the appeal to the EAT had succeeded had been conceded by the Applicant's representative at the Employment Tribunal. The EAT ought not to have permitted the Applicant to re-open that issue. The appeal was allowed and the Employment Tribunal decision reinstated.Before us Mr Linden submits that he is not taking a new point on behalf of the Appellant. He argues that it must have been clear to the Chairman below that by leading the evidence referred to in paragraph 4 of the reasons, the Appellant's representative was not conceding that the relevant term of the contract was contained in the Statement; she was contending that the parties had reached an oral agreement which was inconsistent with paragraph 7 of the Statement.We cannot accept that submission. As Mr Burfield points out, paragraph 2 of the Schedule of agreed facts is clear and unequivocal. The words speak for themselves. Further, no argument or evidence was put before the Chairman, either orally or in the form of the witness statements, to indicate that it was the Appellant's case that there was a term of an oral contract made between him and Mr Sheriff on behalf of the Respondent which differed from that in paragraph 7 of the Statement. The evidence, accurately recorded at paragraph 4 of the reasons, went to the Appellant's interpretation of the term contained in the Statement, and how similar contracts in the cases of the other two employees were operated in practice in 1996. As a matter of construction that parol evidence was irrelevant as a guide to construction of the accepted term reflected in paragraph 7 of the Statement.We are bound to conclude that the reality here is that Ms Sandle did not, as a non-lawyer, appreciate the significance of agreeing to paragraph 2 of the Schedule of agreed facts, nor that having made that agreement the evidence which she wished to lead and did lead as to the Appellant's interpretation of paragraph 7 of the Statement and the evidence of custom and practice in 1996 was strictly irrelevant.In this regard we have been referred by Mr Burfield to the judgment of Robert Walker LJ in Jones at paragraph 20 where he said this, having referred to the earlier authorities set out in paragraph 19 of the report:
"20 These authorities show that although the Employment Appeal Tribunal has a discretion to allow a new point of law to be raised (or a conceded point to be reopened) the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which (because the point was not in issue) were not sufficiently investigated before the industrial tribunal. In Kumchyk , the Employment Appeal Tribunal (presided over by Arnold J) expressed the clear view that lack of skill or experience on the part of the appellant or his advocate would not be a sufficient reason."
Mr Linden does not submit that there are any exceptional circumstances in this case.Accordingly we hold that this appeal seeks to raise a new case, not argued below. we shall not permit the Appellant to do so. Since it is not suggested by Mr Linden in the appeal that the Chairman's construction of paragraph 7 of the Statement was wrong we must therefore dismiss this appeal.