MR J HYMAN v CHIEF CONSTABLE OF SOUTH WALES POLICE [2003] UKEAT 892_02_0804

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 892_02_0804Case No Appeal No. EAT/892/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J HYMANAPPELLANTCHIEF CONSTABLE OF SOUTH WALES POLICERESPONDENT
Before
His Honour Judge Peter Clark Mr C Edwards Mrs M McArthurDate 8 April 2003
[1]APPEARANCES For the Appellant MR A HUDSON (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors 324 Gray's Inn Road London WC1X 8DH For the Respondent MR A WATERS (of Counsel) Instructed by: South Wales Police Legal Services Police Headquarters Cowbridge Road Bridgend CF31 3SU HIS HONOUR JUDGE PETER CLARK This is an appeal by Mr Hyman against a Decision of a Chairman, Mr John Thomas, sitting alone at the Cardiff Employment Tribunal on 22 July 2002, dismissing his complaint brought under the Working Time Regulations 1998 (WTR) against his former employer, the Respondent Chief Constable of South Wales Police. That Decision was promulgated with Extended Reasons on 30 July 2002.[2]The Appellant commenced his police service as a constable in the Metropolitan Police on 22 September 1986. In November 1996 he transferred to the South Wales Police and on 27 January 2002 he retired from that force on the grounds of ill health.[3]The issue raised in his Originating Application to the Employment Tribunal dated 17 March 2002 was the proper amount of outstanding holiday pay due to him on retirement.[4]It was common ground that on retirement he had unused leave which could be compensated for by a payment in lieu under Regulation 14(2) WTR. The question was what was his leave year for the purposes of calculating that payment? The Appellant contended for the annual leave year commencing on 1 April; the Respondent for 1 October, applying Regulation 13(3)(b)(i). If the Appellant was correct, he would be entitled to more than the sum paid by the Respondent based on his leave year commencing on 10 October.[5]The Chairman upheld the Respondent's submission and dismissed the complaint. He found that the Appellant could not rely upon his actual holiday year, beginning on 1 April (Reasons paragraph 1) because(a) he was not employed by the Respondent under a contract of employment and(b) there was no 'relevant agreement' within the meaning of Regulation 13(3)(a). The Chairman went on to find that the Appellant carried out his duties, not under a contract of employment but under Orders and Regulations, in particular those covered by the Police Regulations 1995, to which he was referred but which, according to paragraph 12 of his Reasons confirmed by his letter to the EAT dated 17 October 2002, the Chairman did not consider it necessary to read.[6]Having considered the way in which the appeal is put by Mr Hudson on behalf of the Appellant (who represented himself below) and the response by Mr Waters on behalf of the Respondent, we have concluded that the Chairman's approach was wrong in law and that the appeal must be allowed. Our analysis of the legal position is as follows.[7]The special position of Police Constables under WTR is regulated by Regulation 41(1) which provides that for the purposes of the Regulations, the holding, otherwise than under a contract of employment, of the office of constable shall be treated as employment under a worker's contract, by the relevant officer.[8]By Regulation 2(1) worker means an individual who works under a contract of employment or contract for services as there defined.[9]As the Chairman found, the Appellant's terms and conditions of service in the South Wales force were determined, for our purposes by the provisions of the Police Regulations 1995. By Regulation 34 of the 1995 Regulations every member of a Police Force shall, so far as the exigencies of duty permit, be granted annual leave in accordance with Schedule 4 to the Regulations. Paragraph 1(2) of Schedule 4 provides that every police constable shall be granted in every leave year commencing after 31 December 1993 the period of leave set out in a table which provides for annual leave of twenty seven days for more than fifteen years relevant service.[10]Paragraph 6(1) of Schedule 4 provides that, for the purposes of that Schedule 'leave year' means that period of twelve months beginning on such date as may from time to time be determined by the police authority.[11]Paragraph 30 of the South Wales Police Standing Order 1/23 provides that the annual leave year will be from 1 April to 31 March, as the Chairman, without troubling to follow through the above exercise, correctly found at paragraph 1 of his Reasons.[12]Turning then to WTR, applying Regulation 41(1) the term as to the Appellant's leave year contained in his conditions of service, as provided for above, shall be treated as a term of his employment under a worker's contract by that deeming provision. We reject Mr Waters' submission that Regulation 41(1) is concerned only with deeming a police constable to be a worker for the purposes of WTR; it is clear on its fact that constable's office is to be treated as employment under a worker's contract. In the present case that is a contract of employment, applying the first limb of the definition of worker's contract under Regulation 2(1). Regulation 13 WTR provides, by Regulation 13(1) that a worker is entitled to four weeks annual leave in each leave year. By Regulation 13(2) a worker's leave year for the purposes of this Regulation, begins -(a) on such date during the calendar year as may be provided for in a relevant agreement, or(b) where there are no provisions of a relevant agreement which apply - (i) if the worker's employment began on or before 1 October 1998, on that date and each subsequent anniversary of that date; it is common ground that the issue is whether the Applicant can point to a relevant agreement which determines a date for the beginning of his leave year. Mr Hudson relies upon the last part of the definition of relevant agreement in Regulation 2(1) which defines:
"relevant agreement", in relation to a worker, means a workforce agreement which applies to him, any provision of a collective agreement which forms part of a contract between him and his employer, or any other agreement in writing which is legally enforceable as between the worker and his employer;"
[13]He submits that by virtue of the Police Regulations read with the standing order it is a term of the Appellant's service that his annual leave year commences on 1 April and that by the provisions of Regulation 41(1) that is a deemed term of his worker's contract in writing and legally enforceable, for example, by Judicial Review proceedings.[14]Mr Waters counters that it is a prerequisite of the definition of relevant agreement relied upon by the Appellant that there is an agreement between the Appellant and Respondent. The 1995 Police Regulations do not constitute such an agreement. The Standing Orders may be varied unilaterally by the Chief Constable. Accordingly there is no relevant agreement in this case and the default provision, 1 October, applies as the Chairman found.[15]We prefer Mr Hudson's submission. A contract of employment is by definition an agreement which is legally enforceable between the parties to it. Here, the Appellant is deemed to be employed under a worker's contract. There is a deemed agreement between the Appellant and the Respondent. The 1995 Police Regulations and Standing Orders are in writing. It is common ground that the provision relied on is legally enforceable.[16]It follows in our judgment that the learned Chairman fell into error in finding simply that the Appellant had no contract of employment. He did not, but was deemed to be employed under such a contract by virtue of Regulation 41(1), to which no reference is made in the Reasons. It follows that, by virtue of that deeming provision there was relevant agreement under which the start date was 1 April, contrary to the Chairman's finding. The fall back date under Regulation 13(3)(b) is not engaged.[17]Consequently, it follows that the Appellant's complaint under Regulation 30(1)(b) WTR succeeds; he is entitled an award of pay under Regulation 30(5), representing the difference between the outstanding holiday pay which he has already received and that which he would receive based on an annual leave year commencing on 1 April 2001. We understand that the parties will be able to reach agreement on the amount of the difference; failing which the assessment will be remitted to an Employment Tribunal for determination.