Evans & Anor v Bradley [1998] UKEAT 437_97_0605

EAT
Evans & Anor v Bradley
[1998] UKEAT 437_97_0605 · 1998-05-06

JUDGE LEVY QC :

An Industrial Tribunal sitting at Exeter on 6th February 1997 unanimously held, on a claim by Mrs Bradley against MJ & CL Evans ["the Employer"], that Mrs Bradley's application for constructive dismissal did not succeed. However, it ordered that the Employer were to pay Mrs Bradley £184 accrued holiday pay. From that decision, the Employer lodged a Notice of Appeal dated 19th March 1997. Mrs Bradley notified the court to say that she did not wish to appear on the appeal. The matter came before a division of the Employment Appeal Tribunal as a preliminary hearing, which expressed a preliminary view that the implication of a term for holiday pay was not one which the tribunal should have made, having regard to the decision in Morley v Heritage PLC [1993] IRLR 400 to which had it been referred.Neither party has chosen to attend this hearing today. We look to see the judgment in the extended reasons as to why holiday pay was awarded. We find this in paragraphs 8 to 12 of the extended reasons:
"8 We then looked at the question of holiday pay, which is of course how the application started. The contract that was given to Mrs Bradley was provided in May 1995. That arose because Mrs Bradley had a week off in May 1995 for which she was not paid. The contract provides holiday entitlement of 1 week paid after 1 year of continuous employment and 2 weeks paid after 2 years of continuous employment.
9 It is accepted that that means the employee can work for one whole year without any paid holiday but as soon as the anniversary passes the employee is then entitled to 1 weeks paid holiday and after the second anniversary to 2 weeks paid holiday. Mrs Evans says quite simply that there was no period of employment after the second anniversary during which to take that holiday and so Mrs Bradley cannot have it.10 This is contract on one page of A4 and there are not very many words on that page. There are lots of holes in the contract we have to fill in. In particular it does not provide for the situation where an employee leaves without having taken holiday to which he or she is entitled. It is necessary for us to imply either that she is not entitled or that she is entitled. Our view is that most employers and employees expect that if an employee leaves during the course of the holiday year having accrued some holiday, that they are entitled to be paid for days not taken. That certainly was Mrs Bradley's view of matters.11 Mrs Evans view was that if holiday was not taken during the year and the employee worked for the entirety of the year without taking that holiday, then for the holiday worked and not taken the employee could expect to be paid, at double rate effectively, for that period.12 We therefore imply a term that an employee in this employment is entitled to be paid for holiday accrued but not paid. Mrs Bradley left after just a little over 2 years, in fact 2 years and 2 days, having started on 19 September 1994 and leaving on 21 September 1996. The trigger to her holiday entitlement is the second anniversary. She is entitled therefore, to 2 weeks paid holiday. She left without taking it. She is therefore, entitled to be paid for it. Net pay was £92 per week. She was entitled to 2 weeks pay and so we order and Mr and Mrs Evans pay accrued holiday pay of £184 to Mrs Bradley."The decision, which was referred to by the Employer, is one which we have considered. It is a decision of the Court of Appeal in Morley v Heritage [1993] IRLR 400 . It is clear there that the Court of Appeal dismissed an appeal where the employee claimed holiday pay. The employee in that case had a written service agreement running into many pages and many clauses; on the construction of that agreement, the Court of Appeal held that a condition for the employee to receive holiday pay could not be implied. The facts were very different to those which the Industrial Tribunal had to consider. In our judgment on the facts as presented to them in the context which they were presented the Industrial Tribunal, were entitled to imply the term as they did. It is a decision to which many tribunals up and down the land would have reached on those facts. It is a decision with which we cannot interfere because it is one, which, in our judgment, they were entitled to make.In these circumstances, we will dismiss the appeal.