INDUSTRIAL & COMMERCIAL MAINTENANCE LIMITED v MR A M BRIFFA [2008] UKEAT 0215_08_2207

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0215_08_2207Case No Appeal No. UKEAT/0215/08/CEA UKEAT/0216/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
INDUSTRIAL & COMMERCIAL MAINTENANCE LIMITEDAPPELLANTMR A M BRIFFARESPONDENT
Before
His Honour Judge Peter ClarkDate 22 July 2008
[1]APPEARANCES For the Appellant MR J BOULTER (Representative) The Barn Bowden Lane Templecombe Somerset BA8 0PQ For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY WORKING TIME REGULATIONS: Holiday pay Effect of 'relevant agreement' (Regulation 2 Working time Regulations) on employer's obligation to give notice of holiday to be taken by employee, under regulation 15. HIS HONOUR JUDGE PETER CLARK These appeals raise a short point on the proper construction of the Working Time Regulations 1998 (WTR). The parties are Mr Anthony Briffa, Claimant, and Industrial & Commercial Property Maintenance Limited, Respondent. The appeals are brought by the Respondent against, first, the substantive judgment of Employment Judge Sara sitting alone at Bristol on 11 January 2008, awarding the Claimant £249.50 compensation under Regulation 14 WTR. That judgment is dated 14 January. Reasons for the judgment were promulgated on 17 March. And secondly, against Judge Sara's review judgment with reasons dated 12 February 2008, dismissing the Respondent's review application. Background[2]The Claimant's relevant period of employment with the Respondent commenced on 14 March 2007. On 10 August 2007 he was given one week's notice of termination by a letter of that date from Mr Boulter on behalf of the Respondent. That letter said, among other things:
"… Your notice is one week and therefore your last day of work on the books is Friday, August 17th. However we do not want or need you to work your notice. Instead and in accordance with our contract terms, insofar as you have accrued but not taken paid holiday you must take the holiday next week and will be paid accordingly…"
[3]The Claimant received a copy of the Respondent's Standard Conditions of Employment, which he signed, accepting the terms and conditions therein, and dated 5 June 2005, that is during a previous period of employment with the Respondent between 23 May 2005 and 23 February 2007.[4]On 4 July 2005 the Respondent issued a statement to all employees headed Benefits and Contractual Conditions Review 1 July 2005, again signed by Mr Boulter. That statement announced a 3 per cent pay increase for staff across the board. It also announced two changes to the contractual terms of employment, the second of which read as follows: "If an individual gives or receives statutory notice and is not required to perform physical work during that period of notice, the employee shall be regarded as being on holiday during the period of notice." [the variation][5]Following termination of the employment on 17 August 2007 the Claimant commenced these proceedings by a Form ET1, presented to the Employment Tribunal on 17 October 2007, claiming outstanding holiday pay. The claim was resisted by the Respondent, relying on the contractual variation dated 4 July 2005 (see Form ET3; paragraph 3.6).[6]In his reasons for upholding the claim the Judge accepted (paragraph 3) that the variation was a term of the Claimant's contract of employment, but went on to hold that it did not comply with Regulation 15 WTR, and that the Claimant was entitled to four days outstanding holiday pay.[7]In so holding, the Judge relied (reasons, paragraph 2) on the requirement under Regulation 15 that the employer must give notice of holiday dates double the amount of time to be taken, that is eight days notice prior to 10 August. Since no such notice had been given the Respondent was in breach of Regulation 15, entitling the Claimant to four days holiday pay under Regulation 14. The Appeal[8]Mr Boulter submitted in his Skeleton Argument that the contractual provisions for holiday exceeded the Claimant's entitlement under the Regulations and as such the Respondent was fully entitled to the defined terms for taking holiday in its contract of employment, granted in excess of WTR obligations.[9]That submission, it seems to me, incorporates a feature of Regulation 15 which has hitherto been overlooked, although it was drawn to my attention this morning by Mr Boulter. Regulation 15(5) provides:
"Any right or obligation under paragraphs (1) to (4) may be varied or excluded by a relevant agreement."
[10]"Relevant agreement", as defined in Regulation 2, Interpretation, means a workforce agreement, incorporated collective agreement or, material to the present case "any other agreement in writing which is legally enforceable as between the worker and his employer".[11]A question might have arisen in this case as to whether the Claimant had consented to the unilateral variation 'required' by Mr Boulter in his Statement dated 4 July 2005. However, Judge Sara found that the variation was a term of the contract of employment (reasons, paragraph 3), and there is no cross appeal against that finding. Mr Briffa has not attended today and has indicated that he relies on his written submissions. Since the variation is in writing and was held to be legally enforceable between the parties (it was a specific provision of the contract of employment held the judge), I would hold that it was a relevant agreement within the meaning of Regulation 2 and, as such legally operated to vary the Respondent's obligation to give notice under Regulation 15(1) - (4) by virtue of Regulation 15(5). Conclusion[12]For these reasons, I shall allow the appeal against the Substantive Judgment, and set aside the award made in favour of the Claimant in the sum of £249.50. Consequently, I make no order in the appeal against the Review Judgment.[13]Finally, having dealt with the substantive appeal as a pure matter of construction, I have not lost sight of the policy behind the WTR. It is to ensure that workers take sufficient holiday with pay. In this case, the Respondent was entitled to require the Claimant to work his week's notice. They did not do so; he was given the week off. Thus, the purpose behind the Regulations, implementing the Working Time Directive, has been fulfilled in this case.