POTTING CONSTRUCTION LTD v MR A ELLIOTT [2000] UKEAT 680_00_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 680_00_2510Case No Appeal No. EAT/680/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
POTTING CONSTRUCTION LTDAPPELLANTMR A ELLIOTTRESPONDENT
Before
Mr Justice Charles Mr B V Fitzgerald Ms B SwitzerDate 25 October 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS MR JUSTICE CHARLES : This appeal comes before is today by way of a preliminary hearing pursuant to our Practice Direction. We therefore have to consider whether it raises a reasonably arguable point of law.[2]The appeal is against a decision of a Chairman of an Employment Tribunal sitting alone at London (North). The decision was that the Applicant is entitled to one and a half day's holiday pay.[3]The dispute before the Chairman sitting alone related to Articles 13 and 14 of the Working Time Regulations 1998 . It was and is common ground that the most relevant provisions thereof are 13(2)(b) and 13(6) and 14. The appeal centres on the application of regulation 13(2)(b).[4]The Appellants have not appeared today. We do not know why that is the case. Attempts have been made to contact them on the telephone but those attempts have failed to obtain a response.[5]The Notice of Appeal sets out clearly the basis of the appeal.

(b) provides as follows:

"(2) The period of leave to which a worker is entitled under paragraph (1) is - (b) in any leave year beginning after 23 rd November 1998 but before 23 rd November 1999, three weeks and a proportion of a fourth week equivalent to the proportion of the year beginning on 23 rd November 1998 which has elapsed at the start of that leave year"
[6]The Chairman concluded that the proportion referred to was one half with the result that applying 13(6) the holiday entitlement for the year 24 February 1999 to 23 February 2000 was 18 days. The Appellants argue on the appeal that the correct proportion is one quarter which has the result mathematically that the holiday entitlement was 17 days.[7]The relevant proportion is the proportion of the year of 23 November 1998 to 22 November 1999 which had elapsed at the start of the relevant leave year, namely 24 February 1999; that is three months or one quarter as the Appellants assert in their Notice of Appeal.[8]Accordingly at present, it seems to us that in applying Regulation 13(2)(b) the Chairman made an error, albeit perhaps a mathematical error, and that the appeal does raise a reasonably arguable point of law on the interpretation and application of the relevant regulations.[9]We will therefore direct that the appeal should go forward to a full hearing. We will give this case Category B and a time estimate of one to two hours.[10]Having said that, it is clear that the sums in dispute are very small and we would hope that the representatives of both sides, having regard to the preliminary view expressed by us in this judgment, would consider whether or not this appeal could be disposed of by way of agreement.