UNIVERSAL CONTRACT SERVICES v MR M FLANIGAN [1999] UKEAT 1068_99_1011
[2]8 th July of this year sent to the parties on the 30 th July, with the unanimous decision of the tribunal being that the respondent is ordered to pay the applicant the sum of £277.00 being payment in lieu of leave. That being a claim made under the Working Time Regulations. A notice of appeal was lodged dated 18 th August and the Appellant has not attended this hearing, having on the 13 th October indicated to the Employment Appeal Tribunal that they did not intend to be present at the hearing.[3]The claim arose from an engagement of the Applicant by the Appellant to perform at work on a labour subcontract basis beginning on the 19 th October 1998 and ceasing 29 th January 1999. If that period comprised a period of continuous employment for at least 13 weeks then the Working Time Regulations 1998 would apply and, upon its termination, he would be entitled to accrued payment for leave in the sum that was awarded.[4]The point taken by the Appellant is that there was not an unbroken period of 13 weeks employment essentially because between the 23 rd December and 4 th January the Applicant was not on site effectively because the site was closed. The contract, the Employment Tribunal found, contained a number of terms, one of which - clause 16 - provided that the agreement shall end automatically if a period of 13 weeks elapses during which the contract worker is not offered an assignment by the company. The period during which the Applicant was not on site did not amount to 13 weeks and therefore that clause did not kick in to end the contract automatically. There was no evidence that the contract was determined during the period he was off site and therefore the Employment Tribunal found correctly that there was a continuous period of at least 13 weeks employment. We find that there is simply no reasonably arguable case that has been presented in the notice of appeal to challenge that view.[5]In addition, the Appellant seeks to rely on a term of the contract (Clause 7(b)) which excluded the entitlement to any payment under the contract for time spent not on assignment whether as a result of illness, holidays or another reason.[6]On the face of it, that would exclude this applicant from any holiday pay whilst not on site and, arguably, it might preclude any claim to accrued holiday pay under the Working Time Regulation, however, the Regulations provide by regulation 35(1) that any provision in an agreement, whether, a contract of employment or not, is void in so far as it purports to exclude or limit the operation of any provision of these Regulations save in so far as the Regulations provide for an agreement to have that effect.[7]The tribunal went on to find, as is the case, that there is no such further provision in the Regulations and therefore they concluded that, whatever the contract may say as to the entitlement of the applicant to payment or remuneration, the Regulations apply and any attempt to contract out is void.[8]In the light of that specific provision in the Regulations we conclude that there is no reasonably arguable case that the Employment Tribunal erred in law or was perverse in its findings of fact. Accordingly, we find that there is no reasonably arguable case that it was wrong in concluding that the Appellant owes the Applicant some £277.00 under the Regulations for payment in lieu of leave. Therefore, we dismiss this appeal at this stage.