Sterling Coatings v. Reed [1999] UKEAT 214_99_1405

EAT

Sterling Coatings v. Reed

[1999] UKEAT 214_99_1405 · 1999-05-14

This appeal is about £40.

The Appellant, Mr Reed, was employed by the Respondent as a trainee applicator of special coatings to houses from 5 May until 26 May 1998. He had been engaged on one months trial, and it was agreed at the outset that he would be paid at the rate of £200 per week gross with £5 gross per hour for work on Saturdays.

When the matter came before the Leeds Employment Tribunal on 8 October 1998 (Chairman, Mr JMQ Hepworth sitting alone) it was agreed between the parties that the Applicant had received no pay during his 3 week engagement, and Mr Wright on behalf of the Respondent, agreed that he was entitled to £600 gross for 3 weeks work.

The issues, identified by the Chairman for adjudication were:

(1) whether, in respect of work done by the Applicant on Saturday 9 May, he was entitled to

(a) 3 hours travelling time at £5 per hour, and

(b) £47.50 in respect of 9.5 hours work done on that Saturday at the rate of £5 per hour.

(2) whether the Applicant was entitled to any payment in respect of Friday 15 May, when it was common ground that he had been given the day off to collect his girlfriend from the station.

As to the first issue the Chairman found that the Applicant was entitled to wages for time worked, but not for travelling time. We do not understand, from the written representations submitted by Mr Wright, who does not appear before us today on behalf of the Respondent, that any point is taken in this appeal in relation to the first issue.

As to the second issue, the Chairman found that there was to be implied an agreement that the Applicant would be paid for Friday 15 May, although he had been given the day off, on the basis that that was a day off in lieu to compensate the Applicant for working over and above 8 hours on earlier days.

Accordingly the Chairman awarded a total of £687.50 to the Applicant, comprised of 3 weeks pay at £200 per week; £600, £47.50 for the 9.5 hours worked on Saturday 9 May and 8 hours pay (£40) for the day off in lieu taken on Friday 15 May.

It is against the Chairman's finding, contained in Extended Reasons promulgated on 19 January 1999, that the Applicant was entitled to be paid for 15 May that this appeal is brought. This is a preliminary hearing held to determine whether the appeal raises any arguable point of law which ought to proceed to a full appeal hearing.

Mr Wright submits that the Chairman was not entitled to find that payment of wages was due for 15 May, particularly in circumstances where, in the Applicant's original formulation of his claim in a letter dated 1 June 1998, no claim is made in respect of that day off. Further, the Chairman was wrong to take into account the Respondent's statement contained in a letter dated 3 June to the Applicant where it is said:

"I am prepared to pay you 2 weeks wages, this includes payment for the Friday that you had off to pick up your girlfriend. I gave you this paid time off to make up for the extra hours that you had put in during the first 2 weeks."

That was part of an overall settlement offer by the Respondent, and the offer of payment for 15 May was conditional on the remainder of the package being accepted by the Applicant. In the event it was not.

It seems to us that it is the Respondent which is being selective. The 1 June claim is formulated on the basis that the Applicant should be paid for the actual hours worked. Those included the extra hours which the Respondent treated as credited by the paid day off in lieu.

Further, on his own case set out in a letter to the Registrar of the EAT dated 11 May 1999, Mr Wright states:

"The written contractual agreement which was accepted at the outset by Mr Reed was to "be given time off in lieu of extra hours at an agreeable time."

It therefore follows that that the Chairman's approach was correct. The Applicant was entitled to his wages for Friday 15 May, being a day off in lieu to compensate him for extra unpaid hours worked on previous days.

Since that is the only point raised in the appeal, we must dismiss it. It does not raise an arguable point of law.

However, before parting with this case it occurs to us that in calculating the award the Chairman appears to have given double recovery for 15 May. That day is included in the 3 weeks for which £600 was awarded. The Applicant was not entitled to an additional award of £40 in respect of that day. That is what appears to have happened in the final calculation made by the Chairman. Although there is no appeal before us on that basis, it occurs to us that the Respondent may wish to apply to the Chairman for the decision to be corrected in this respect under Rule 10(9) of the Employment Tribunal Rules of Procedure, subject to representations by the Applicant.