MR M U HASSAN v MUSLIM AID [2001] UKEAT 0412_00_1705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0412_00_1705Case No Appeal No. EAT/0412/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M U HASSANAPPELLANTMUSLIM AIDRESPONDENT
Before
Her Honour Judge A Wakefield Ms S R Corby Mr D J Hodgkins CbDate 17 May 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT HER HONOUR JUDGE A WAKEFIELD This is an appeal by Mr Mahmood-Ul Hassan against part of a decision of an Employment Tribunal sitting at London North on 24 January 2000 at which the quantum of compensation to which he was entitled in consequence of wrongful dismissal and unfair dismissal was determined. Neither party has appeared before us on this appeal and we have decided it on the basis of the documents.[2]Of the many heads of compensation which fell to be determined by the Employment Tribunal this appeal concerns two only. The first is as to a car allowance for the period from the day of actual dismissal, which was 30 January 1999, to the date when the Employment Tribunal had held that a lawful contractual dismissal could have taken place. This is a total period of 8 months. The second head is as to holiday pay, both as regards the same 8 month period and for a 1 month period in 1999, immediately prior to the dismissal.[3]Dealing first with the car allowance. An earlier Employment Tribunal hearing had determined in a decision in the same case and which has not been appealed as follows, from paragraph 11 of that earlier decision:
"Argument here centred around a letter to be found at page 14 of the Respondents' bundle which contained some variations to the terms and conditions of the Applicant's contract of employment, particularly in relation to his salary, and says in clause 4: "
The employee to receive an annual allowance of £500. This would apply towards the use of an employee's personal car and on rare occasions for Muslim Aid business." The Applicant's contention was that this meant that he was entitled to receive a sum of £500 per annum as a car allowance. The Respondents said that this was not so and that the intention of the clause was that the Applicant should receive sums up to £500 for the use of his car for the Respondents' business. We find that the construction of this clause is to be in favour of the Applicant and that the intention was that he was to receive an annual car allowance of £500 in recognition of the fact that he did use his car for the Respondents' business." In accordance with that finding, the Employment Tribunal in the decision now the subject of appeal, awarded a sum in respect of the car allowance up to the day of dismissal, that is up to 30 January 1999. The Employment Tribunal, however, did not award any sum under this head for the subsequent 8 month period on the basis of which they had otherwise awarded compensation for wronglful dismissal. This appears to us to be an omission which was an error of law. We therefore award the appropriate pro rata sum of £333.33.[4]The argument as to 20 days paid holiday is put it this way in the grounds of appeal:
"The Applicant for the 8 month period, in addition to amounts awarded, would also have earned 20 days paid holiday. That is at 30 days per year, for which the Employment Tribunal should have awarded £1,750 in line with point 9(iii) of the decision, which awarded 2 days pay for untaken holidays for the 1 month period the Applicant was in employment."
That latter 1 month period was January 1999.[5]We do not consider that the Employment Tribunal did fall into error in this regard. The 8 month period they assessed as the appropriate disciplinary procedure and notice period must be inclusive of such holiday as was due to the Appellant pro rata in that leave year. To award compensation for 20 additional days would effectively increase the overall period which the Employment Tribunal had correctly identified as being appropriate as regards contractual entitlement. This aspect of the appeal therefore fails.[6]There is however, another aspect of holiday pay which is raised in the grounds of appeal as follows:
"In calculating holidays for the period the Applicant was in employment during 1999, there is an error in calculation. As per Applicant's employment contract, annual holidays from 1 January were to increase to 30 per year. So the 'holidays for the month the Applicant was employed in 1999' should have been 2.5 days rather than 2 days. This resulted in an under-calculation of £43.75."
Although this particular aspect of the grounds of appeal was not specifically referred to in the decision on the Preliminary Hearing at this Appeal Tribunal we do not consider that the Appellant is now prevented from raising it. It has always been in his Notice of Appeal. We agree that the Employment Tribunal made an error in awarding compensation for January 1999 on the basis of 2 rather than 2.5 days. We therefore increase the award under that head by £43.75.[7]The overall result is that the appeal succeeds and that the compensation awarded to the Appellant is increased by the total figure of £377.08.