Appeal No. EAT/1445/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 March 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR J R RIVERS

P J STUART t/a STUART PLANT HIRE	APPELLANTS

1) MR J EDMONDSON  2) MR D CLARK	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	THE APPELLANTS IN PERSON	

JUDGE J McMULLEN QC

1	This hearing is conducted pursuant to section 28(3) of the Employment Tribunals Act 1996.  Owing to transport difficulties today, this case is heard by a judge and member alone, with the consent of the Appellants, the Respondents at the Employment Tribunal.  

2	The case concerns the Working Time Regulations, the calculation of a basic award for unfair dismissal and costs.  The appeal is against a Decision of an Employment Tribunal sitting at Manchester, Chairman Mr P A Verdin on 17 September 2001, promulgated with Extended Reasons on 5 October 2001.  

3	The two Applicants represented themselves, the Respondents did not appear at the Tribunal.  The issues before the Tribunal were: unfair dismissal; a correct calculation of holiday pay outstanding; compensation for unfair dismissal and unlawful deduction from wages.  The Tribunal decided that both Applicants were unfairly dismissed and were awarded compensation therefor.  No appeal arises out of that Decision.  The Tribunal also decided that the Applicants were entitled to sums of money for unpaid holiday pay and for wrongful deduction from wages.  No appeal arises out of the latter point.  

4	The Applicants were employed by the Respondents, in Mr Edmonds’ case from 24 August 1998 and in Mr Clark’s case from 11 October 1998.  They were engaged in the building industry; they were given no written terms of employment; they appeared to have been paid an hourly rate of respectively £9 and £8.50.  Their employment was terminated on 2 June 2000.  There was no consultation. The Tribunal decided that the dismissals were unfair.  

5     In related proceedings between these parties at Preston County Court, the Respondents made claims against the Applicants.  The case was heard by Judge Smith on 2 July 2000 and Orders were made in respect of Mr Clark for £42 and of Mr Edmondson for £1,075 plus a part of the costs.

6     Detailed calculations as to the money due to the Applicants in these proceedings were set out by the Tribunal in its Reasons.

7     The first point taken by Mr Stuart relates to the award by the Tribunal for unpaid holiday pay from 1 October 1998 to 30 September 1999.  The Tribunal found that Mr Edmondson was to be paid £1,200 for the period 11 October 1998 to 10 October 1999 and that Mr Clark was entitled to £1,125.  It is contended that that is an error, since the provisions of Regulation 13(9) do not permit what is in effect a retrospective claim.  
“It may be only be taken in the leave year in respect of which it is due and it may not be replaced by a payment in lieu except where a worker’s employment is terminated” 

8     We agree that this is reasonably arguable.  It appears to us that the words reflect the intention of Parliament to mirror the experience of those in industry and in service. Holiday entitlement may not be moved from one year to the next, where an employee is dismissed or leaves during the currency of a leave year, untaken holiday is reflected in an entitlement to a payment under the Regulations, but this is not carried forward from year to year. Mr Stuart’s point, it seems to us, has merit and that will go forward to a full hearing.  

9     The second point relates to the calculation of a basic award in respect of Mr Edmondson, calculated by the Tribunal at £240 and yet, in the case of Mr Clark, at £230.  The statutory maximum for a week’s pay was £230 and there appears to have been a slip in the calculation of the basic award for Mr Edmondson.  We would have corrected this ourselves, using our power under Rule33(3), or invited the Tribunal under its Rule 12(8) to correct it, but since this point is going forward to a full hearing this simple error in the application of the then current maximum amount for a week’s pay, in respect of one only of the Applicants, can be dealt with at the full hearing.  

10      The third ground of appeal relates to the award of costs against the Respondents at the Employment Tribunal.  The Tribunal took the view that their conduct was vexatious and irresponsible, and they had put the Applicants to unnecessary expense and trouble in preparing a case before the Tribunal and failing to address the claims of the Applicants after the finding by Judge Smith, from which it would appear that the Respondents would have no defence to the claim.  

11      The Respondents were not at the Tribunal in order to put forward the argument which Mrs Stuart has now put forward.  Had she been there, and had the Tribunal not made the judgment which we have recorded above about their conduct, the result may well have been different.  Mrs Stuart, realistically we think, accepts the condemnation by the Tribunal and makes no challenge to the Order that the Respondents pay photocopying charges and the loss of money incurred by the Applicants from their wages in attending the hearing.  She does, however, contest that part of the Order for costs of £328 relating to the transcript of proceedings in the County Court.  We are very reluctant to interfere with the exercise of a discretionary power of a Tribunal over a matter such as costs and in the light of Mrs Stuart’s acceptance that the principle of the Order is correct, and her challenge is only to parts of the arithmetic, we do not detect an error by the Tribunal and will dismiss that part of the claim.  

12      The Notice of Appeal also contains a contention that a complaint was not made within three months. That relates to the discretion of a Tribunal to hear a claim, but if the full hearing of the EAT decides Mr Stuart is correct in law, then this matter does not arise.  It is only focused upon a claim made by the Applicants for unpaid holidays in 1998 - 1999,  If the full hearing decides that Mr Stuart is wrong, it seems to us no point arises on the time point, since this could have been raised at the Employment Tribunal and was not, and we have no basis upon which to interfere with the Tribunal’s Decision. To that extent the appeal is dismissed.

13      Category C, estimate one hour.  A Skeleton Argument is to be produced relating to the Working Time Regulations point, by the Respondents four weeks before the hearing, and by the Applicants two weeks before.