P J & D STUART T/A STUART PLANT HIRE v (1) JOHN EDMONDSON (2) DAVID CLARK [2003] UKEAT 1445_01_1601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1445_01_1601Case No Appeal No. EAT/1445/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
P J & D STUART T/A STUART PLANT HIREAPPELLANT(1) JOHN EDMONDSON (2) DAVID CLARKRESPONDENT
Before
Mr Justice Rimer Mrs R A Vickers Mr G H WrightDate 16 January 2003
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondents MS N CUNNINGHAM (of Counsel) FRU THE HONOURABLE MR JUSTICE RIMER This is an appeal by Messrs P J & D Stuart, who trade as Stuart Plant Hire, which we shall call for short "SPH", against part of a decision of the Employment Tribunal (Chairman, Mr P A Verdin), sitting at Manchester on 17 September 2001, a decision which was promulgated on 5 October when it was sent to the parties.[2]The respondents to the appeal, who were the successful applicants before the Employment Tribunal, are John Edmondson and David Clark. They had made separate applications but their applications were heard together. Each applicant made claims in respect of compensation for unfair dismissal, for unpaid holiday pay and for wrongful deductions from wages. All their claims succeeded. The only part of the awards made by the Employment Tribunal that is the subject of the appeals is in that respect of part of the holiday pay awarded by the Tribunal to each of the applicants.[3]The applicants are former employees of SPH. Mr Edmondson had been employed from 24 August 1998 as a shuttering joiner, and Mr Clark from 11 October 1998 as a machine driver and general labourer. SPH dismissed both men on 2 June 2000. Mr Edmondson and Mr Clark appeared in person before the Tribunal. However, SPH did not appear and was not represented, so the hearing took place in their absence. It is not necessary to refer to very much of the Tribunal's extended reasons, having regard to the narrow challenge to its decisions which are raised by this appeal. We need only refer to parts of paragraphs 6 and 7, in which the Tribunal said this:
"6 With regard to holiday pay the Tribunal applied the Working Time Regulations. It was unclear whether any agreement had been made as to the holiday entitlement of either of the parties and the Tribunal therefore applied the minimum in the regulations. Mr Edmondson was entitled to three weeks holiday during the period 1 October 1998 to 30 September 1999. He was not paid for this and the Tribunal calculate three weeks holiday pay amounts to £1,200. … 7 In the case of Mr Clark the Tribunal calculated his holiday entitlement from 11 October 1998 to 10 October 1999. This was three weeks totalling £1,125. …"
Those two sums formed part of the overall award made by the Employment Tribunal in favour of the applicants.[4]By their Notice of Appeal, dated 12 November 2001, SPH challenged the correctness of those awards. Their point was based on certain of the regulations set out in the Working Time Regulations 1998 . In particular, they relied on Regulation 13(9) which reads:
"Leave to which a worker is entitled under this regulation may be taken in instalments, but – (a) it may only be taken in the leave year in respect of which it is due, and (b) it may not be replaced by a payment in lieu except where the worker's employment is terminated."
SPH had a point that the award of the holiday pay may have amounted to an unlawful retrospective payment, which was contrary to the provisions of that paragraph of Regulation 13. SPH also relied on Regulation 16(1), which provides:
"A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13, at the rate of a week's pay in respect of each week of leave."
Finally, they also placed reliance on Regulation 30 headed 'Remedies', which we need not quote, but which provides that a worker may present a complaint to an Employment Tribunal that the employer has failed to pay him the whole or any part of any amount due to him under, amongst other provisions, Regulation 16(1), and Regulation 30(2) provides a time limit of three months for the presentation of such a complaint with a discretion or jurisdiction in sub-paragraph (2)(b) in the Employment Tribunal to extend time if satisfied that it was not reasonably practicable for the complaint to be presented before the end of the relevant period of three months.[5]Mr Edmondson's originating application to the Employment Tribunal was issued on 21 June 2000, which was well after the expiration of the three month period. The application notice does not make it unambiguously clear what holiday he in fact took during the particular year 1998 to 1999 with which the appeals are concerned, although the inference which one draws from the originating application is that he took at least eight days in the summer plus whatever he took at Christmas 1998. Mr Clark's application to the Employment Tribunal was dated 6 July 2000, which was also outside the three month period. Again, he does not make unambiguously clear what leave he took during the year, although in its Notice of Appearance, SPH asserted that he took six weeks unpaid leave during that year. Nor, it should be said, do the passages we have read from the Employment Tribunal's decision make it abundantly clear whether leave was in fact taken. Ms Cunningham, who appears on behalf of the respondents, submits that the words we have quoted from paragraph 6 reading: "He was not paid for this…" are consistent with a finding by the Employment Tribunal that at least three weeks leave was taken by Mr Edmondson during the relevant year. We accept that she is correct in that submission: that statement does appear to reflect that that was the finding of the Employment Tribunal. Although one does not find a like piece of language in paragraph 7 when the Employment Tribunal was dealing with Mr Clark, it seems likely that it was approaching his case on exactly the same basis and accepted that he too did in fact take three weeks holiday during the relevant year.[6]That being so, the award in favour of the two applicants of the sums which the Employment Tribunal identified was an award of holiday pay to which they were prima facie entitled under the Working Time Regulations . It is therefore difficult to see what challenge can be made to it on this appeal. Certain aspects of the appeal were struck out at a Preliminary Hearing when His Honour Judge McMullen QC ruled on the matter, in particular the point that the applications to the Employment Tribunal were out of time.[7]The matter is not made any easier by the fact that today, although we have had the assistance of Ms Cunningham, for which we are grateful, SPH have chosen not to appear before this Tribunal. We could, therefore, perhaps have taken the step of simply dismissing the appeal, but we have not taken that step. We have listened to Ms Cunningham and her submissions as to why we should dismiss it on the merits. She fairly recognises that there is an element of uncertainty as to precisely what findings the Employment Tribunal were making with regard to whether or not, and how much, holiday was actually taken. But, as we have said, we are disposed to infer that the Tribunal did find that each applicant took three weeks' holiday for which he was not paid.[8]SPH did not advance any other case before the Employment Tribunal, nor has it attended on this appeal to assist us further on the matter insofar as it would be open to it to assist us, bearing in mind that its appeal against the decision of the Employment Tribunal is confined to an appeal on a question of law.[9]We have come to the conclusion that, working on the basis that the Employment Tribunal proceeded on the basis that each applicant had and took three weeks' leave in the relevant year, each made out his case to the payment of the award which was awarded to him and we have decided that the appeal before us, reduced in scope as it already has been by the Orders earlier made by His Honour Judge McMullen QC, is an appeal which should fail and we dismiss it.