MS R BRAYSHAW v LAMBETH COMMUNITY OF REFUGEES FROM VIETNAM [2003] UKEAT 0713_03_1612

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0713_03_1612

Case No Appeal No. UKEAT/0713/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS R BRAYSHAWAPPELLANT

LAMBETH COMMUNITY OF REFUGEES FROM VIETNAMRESPONDENT

Before

Mr Justice Rimer Mr A Harris Mr G Lewis

Date 16 December 2003

[1]APPEARANCES For the Appellant MS R BRAYSHAW THE APPELLANT IN PERSON For the Respondent MR NIM (Representative) The Lambeth Community of Refugees from Vietnam THE HONOURABLE MR JUSTICE RIMER: This is an appeal by Ms Rita Brayshaw against a decision of an employment tribunal sitting at London South on 10 February 2003, and chaired by Mr I.M.Macinnes. The tribunal's extended reasons were promulgated on 22 April 2003. Ms Brayshaw was the applicant and the respondent was her former employer, the Lambeth Community of Refugees from Vietnam ("the LCRV"). By its decision the tribunal ordered the LCRV to pay her £146.25 by way of pay in lieu of holiday leave. It held that the LCRV was not otherwise in breach of her contract of employment

[2]Ms Brayshaw's originating application was dated 22 October 2002. She claimed various heads of relief. The facts found by the tribunal can be expressed shortly. It found that Ms Brayshaw entered into a series of three contracts with the LCRV to provide her personal services as a tutor in English as a second language. The contracts were in similar form and were each headed "Conditions of Employment." The first contract provided for Ms Brayshaw's employment to start on 10 September 2001 and to terminate on 17 December 2001, although it was also terminable on one week's notice by either side. The hours of work were 9.30 am to 12.30 pm on Monday to Wednesday, or nine hours a week, the hours to be variable by agreement. The salary was £16.25 per hour. The second contract provided for Ms Brayshaw's employment to start on 7 January 2002 and to terminate on 15 April 2002, again for three hours a day on each Monday to Wednesday at the same salary. The third contract provided for Ms Brayshaw's employment to start on 22 April 2002 and to terminate on 25 July 2002, again for three hours a day on each Monday to Wednesday at the same salary. Ms Brayshaw was to pay her own NI contributions and income tax.

[3]The tribunal said in paragraph 3(ii) of its reasons:

"(ii) [Ms Brayshaw] was required under the first and second contracts to oversee exams on the final day of the contract – in each case a Monday. 25 July 2002 was a Thursday. On the Monday of the week before 25 July 2002 Mr Nim [of the LCRV] told [Ms Brayshaw] that she was not required to take the exams on 25 July 2002. [The LCRV] paid her three hours wages in lieu. In the event the exams on 25 July 2002 took less than three hours to complete."

We understand from that finding that, under the third contract, Ms Brayshaw was also required to oversee exams on Thursday 25 July 2002, the last day of the contract, but that on Monday 15 July 2002 the LCRV gave her notice that she would not in fact be required to do so. The tribunal also found that the LCRV allowed Ms Brayshaw three days paid leave in February 2002 for the Chinese New Year and also one day for Easter Monday, on 1 April 2002. Otherwise she was not given any paid leave.

[4]One of Ms Bradshaw's claims to the tribunal was for pay in lieu of leave. The tribunal found that she was a "worker" within the meaning of the definition in regulation 2 of the Working Time Regulations 1998. As such, she was entitled to annual leave in accordance with the provisions of regulation 13. The tribunal found that she was employed under three separate contracts of employment with the LCRV and that there was no continuity of employment between the contracts. It held, therefore, that at the time of what it described as her dismissal, in July 2002, she had only three months continuous employment with the LCRV so that she was only entitled to 3/12 of her annual leave entitlement of four weeks. She had taken no leave during the third contract and so the tribunal held that, under regulations 14(2) and (3), she was entitled to a payment of one week's pay in lieu of untaken holiday. As she worked three-day weeks for a total of nine hours, the tribunal calculated her entitlement to one week's pay to be equal to nine hours at £16.25 each, or £146.25, and it awarded her that sum.

[5]Ms Brayshaw's appeal against that decision seeks further relief of a somewhat imprecise nature, but it includes a contention that she is entitled to a greater sum of pay in lieu of leave than the tribunal awarded her. As to that, we consider that there were two errors of law in the tribunal's decision. The second contract terminated on Monday 15 April 2002 and the third contract commenced on Monday 22 April 2002, both being days on which Ms Brayshaw worked for the LCRV. It follows that at least part of each of the two succeeding weeks commencing 15 and 22 April 2002 was governed by a contract of employment between Ms Brayshaw and the LCRV, so that the effect of section 212(1) of the Employment Rights Act 1996 is that both weeks fell to be counted in computing her period of employment with the LCRV. First, therefore, we are of the view that the ET was in error in holding that there was no continuity of employment between the second and third contracts.

[6]Secondly, we consider that the tribunal was also in error in failing to find any continuity of employment between the first and second contracts. It is clear that Ms Brayshaw was being employed by the LCRV on a termly basis, and in the light of the decision of the House of Lords in Ford v. Warwickshire County Council

[1983] IRLR 126

we consider that the tribunal ought to have inferred and found that during the Christmas vacation between the first and second contracts Ms Brayshaw was "absent from work on account of a temporary cessation of work" within the meaning of section 212(3)(b). That means that, even though the Christmas vacation was not governed by any contract of employment between the LCRV and Ms Brayshaw, it fell to be included in computing her overall period of employment with the LCRV.

[7]We consider, therefore, that Ms Brayshaw must be regarded as having been continuously employed by the LCRV from 10 September 2001 to 25 July 2002. During that time she received only four days' paid leave. Her basic right was to four weeks' paid annual leave (see regulations 13 and 16). As she worked only three-day weeks, we consider that this translates to a right to 12 paid days' leave per full leave year. As at 25 July 2002, 87.12% of her leave year had expired, but she had taken only four paid days, or 33.33%, of her annual leave entitlement. In those circumstances, regulation 14(3) provides a formula for the identification of the unpaid leave in respect of which the worker whose employment is determined in the course of a leave year is entitled to payment. Applied to the present facts, and expressed in terms of days, we proceed on the basis that that formula is (12 x 87.12%) – 4, or 6.45 days. Ms Brayshaw was paid at the rate of £48.75 per day, and so we find that she was entitled to £48.75 x 6.45, or £314.43, by way of payment in lieu of leave.

[8]A further claim Ms Brayshaw made was that the giving of notice to her by the LCRV that her services were not required on 25 July was a breach of contract entitling her to compensation, and she claimed compensation at the rate of four hours payment at £16.25 an hour, or £65. By its decision, however, the tribunal refused any claim for compensation in respect of 25 July 2002, on the basis that the LCRV made a payment to Ms Brayshaw in lieu of the time she would have worked on that day, and it also found that anyway the time she would have worked was less than three hours.

[9]By her notice of appeal, Ms Brayshaw asserted that in fact no money was paid to her in respect of 25 July 2002, but the tribunal of course found that it was. Her argument appeared to be that she is entitled to payment not just in respect of that day, but for a week commencing on 23 July and ending on 30 July. She says that she was given notice on 22 July although, as we have said, we understand the tribunal to have found that she was given notice on 15 July. We did not find it easy to follow Ms Brayshaw's argument under this head of her appeal. Her point appears to be that that notice was one purporting to terminate her contract on 25 July, and so was short notice, since a minimum of seven days' notice was required to be given under the contract in order to determine it. But this only applied to notices purporting to terminate the contract earlier than 25 July, when it would expire by effluxion of time anyway. We do not regard the notice that the LCRV gave Ms Brayshaw as one purporting to terminate her contract. It was simply a notice that she was not required to work on its last day. That may have involved a breach of contract, but the tribunal found that she was paid for the time she would have otherwise have worked on that day, and so we cannot identify what loss any breach occasioned by the giving of the notice can have caused her. The tribunal committed no error in this respect.

[10]We will allow Ms Brayshaw's appeal to the extent of varying the tribunal's order so as to award her £314.43 in place of the £146.25 which the tribunal awarded her. Otherwise Ms Brayshaw's appeal is dismissed.