NORTH EAST LONDON COLLEGE v MS R LEATHER [2000] UKEAT 528_00_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 528_00_1910Case No Appeal No. EAT/528/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NORTH EAST LONDON COLLEGEAPPELLANTMS R LEATHERRESPONDENT
Before
His Honour Judge J R ReidDate 19 October 2000
[1]APPEARANCES For the Appellants MS M TETHER (of Counsel) Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL JUDGE REID QC : This is an appeal by the College of North East London from a decision of an Employment Tribunal held at London (North) on 5th January 2000 by which it determined that the applicant, respondent here, was entitled to holiday pay. The dispute between the parties arises in this way: that Ms Leather has for a fair number of years been a part-time lecturer at the College and she asserts that she is entitled to holiday pay by virtue of the Working Time Regulations 1998 .[2]The College's position is that her contract and her remuneration give her the statutory holiday pay to which she is entitled because although there is no express reference to holiday pay in the contract, the hourly rate by reference to which she is paid is calculated so as to include an element relating to holiday pay. Specifically what is suggested is that the total of £17.21 per hour is intended to be split between a basic element of £13.67 and a holiday entitlement of £3.54.[3]The tribunal held that, in all the circumstances, the matter had "to be determined entirely on the provisions of the contract between the parties and that external factors to which the Applicant was not a party could not be prayed in aid in order to determine its meaning." The Chairman went on:
"6. … In particular, I feel that I have to consider what the hourly rate actually was and what it was meant to cover. On this basis I conclude that whatever may have been the intention of the Respondents as to the £17.21 per hour paid to part-time lecturers in the Applicant's position, there was no indication to the Applicant of how this amount was made up and that her contract as it stood in September 1998 was for a payment of £17.21 per hour with the provision that there was no entitlement to paid holidays, i.e. during the academic vacations the Applicant was not paid. …"
The Chairman went on to reject submissions that she must have known that she was being paid in respect of holiday pay and he held that in those circumstances she was entitled to holiday pay.[4]This clearly raises a question of substantial importance, in particular for institutes of further education of one sort or another. It seems to us that the answer is one which is best arrived at when it has been fully argued before a full tribunal.[5]In those circumstances the less we say about the merits of one side or the others position the better. We shall simply send the matter for a full hearing. The case is to be listed for ½ a day, Category B.