WITLEY & DISTRICT MEN’S CLUB & INSTITUTE LTD v MR IAN DAVID MACKAY [2000] UKEAT 151_00_0606
[1]APPEARANCES For the Appellants MISS WOODBRIDGE (of Counsel) Instructed by: Ms J Merkelt Union Solicitor Legal Department Working Men's Club & Institute Union Ltd Club Union House 251-256 Upper Street London N1 1RY JUDGE ALTMAN : This is an appeal from the decision of the Employment Tribunal held at London (South) on 10th September 1999. It comes before us by way of preliminary hearing to determine whether there is an arguable point of law such as to merit consideration in full by the Employment Appeal Tribunal. The appeal and the hearing that was before the Employment Tribunal concern the payment in lieu of accrued holiday entitlement on termination of employment and the construction of the Working Time Regulations 1998. This raises a point of construction upon which Miss Woodbridge, Counsel for the appellants, has observed that there is very little guidance at the present time as to interpretation. The main clause for construction is Regulation 14(3) which provides the method of calculation of compensation when there is untaken leave on the date of termination of employment. That clause provided that the payment due shall be "such sum as may be provided for the purposes of this regulation in a relevant agreement" or, secondly, in accordance with a formula set out, to which I need not refer.[2]Many arguments have been put forward, but in giving leave for this matter to proceed, it seems to us that two areas of argument arise as to the construction of that clause. There is first the argument as to whether a relevant agreement must, on its face, expressly provide that it is for the purposes of Regulation 14 in order for it to be embraced by that provision. Secondly, there is the argument as to whether the relevant agreement, in order to apply, must simply deal with mathematical calculations or whether it can deal with the situation that arises where someone is summarily dismissed for gross misconduct and would, apart from the Regulations, but in accordance with his contract of employment, thereby forfeit all entitlement to accrued pay in lieu of holiday entitlement.[3]The relevant terms of the contract of employment of the respondent employee were contained in the National Joint Industrial Council for the Committee of Registered Clubs Associations Scheme of Wages and Conditions Regulations 1999 ('CORCA') Clause 5.5(c) provided that where there was summary dismissal for gross misconduct, there was no entitlement to accrued holiday pay. This, it was argued, was a relevant agreement for the purposes of the 1998 Regulations .[4]The relevant clause 5.5 of the contract of employment is headed "Accrued Holiday Pay on Termination of Employment" and the Employment Tribunal seem to find that those parts of that agreement which provided mathematical calculation may well have been consistent with the Regulations, but that 5.5(c) was not. It seems to us that this is a point of construction which is a matter of law and gives rise to an arguable point of law which we permit to go forward to be heard in full before the Employment Appeal Tribunal. It will be listed in Category C for half a day. Skeleton arguments are to be filed in accordance with the rules.[5]There was a subsidiary argument as to the calculation of compensation by the Employment Tribunal under Regulation 30, but that would be a matter for an application for leave to amend the Notice of Appeal. [ Application on behalf of the appellants to re-amend their Notice of Appeal .][6]We give leave to re-amend the Notice of Appeal to raise an argument on the extent to which the Employment Tribunal Chairman, sitting alone, directed her mind to the exercise of discretion in the calculation of compensation. Leave is given provided the re-amended Notice of Appeal is filed in the office of the Employment Appeal Tribunal within 14 days of today's date, that is by 19th June 2000. We ask the appellants to notify the Employment Appeal Tribunal at the same time to their best ability, of the current address of the respondent.