Apeal No. UKEAT/0080/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30 March 2010

Before

HIS HONOUR JUDGE PUGSLEY

(SITTING ALONE)

MR M SHERAZ KHAN (APPELLANT)

M K K LOGISTICS (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant Written submissions For the Respondent DEBARRED

CONTRACT OF EMPLOYMENT: Sick pay and holiday pay

WORKING TIME REGULATIONS: Holiday pay

In this case the Employment Tribunal Chairman did not appreciate that the House of Lords have given the judgment in Stringer v Inland Revenue Commissioners [2009] ICR 932 and therefore matters need now to be reconsidered in the light of that decision.

1. This is a case that came before an Employment Tribunal sitting at Leeds. The Claimant was represented by Ms Mira, legal representative. The Respondent did not attend and was not represented. The chairman, Employment Judge Colin Grazin, delivered a brief judgment to this effect:

"The Claimant complains that he was unfairly dismissed; that the Respondent failed to provide terms of conditions and employment; that the Respondent unlawfully deducted wages properly payable to the Claimant; and that the Respondent failed to pay the Claimant's compensation in respect of accrued holiday entitlement SUCCEED."

1. There were various orders made concerning unfair dismissal and failure to provide terms and conditions. An order was made for a sum of £3,825.36 in respect of the unlawful deduction from wages. At paragraph 6 the Employment Judge said this:

"The Respondent do pay to the Claimant compensation in respect of accrued holiday entitlement in the sum of £15.77, calculated net."

1. From that decision the Claimant appeals. The issue is quite simply put that the Employment Judge restricted his award to an amount of £15.77 in respect of accrued holiday entitlement for the Appellant's current holiday year only. The Employment Judge in reaching his decision stated there was no authority for the accrued holiday pay claim to date back to 13 August 2007. The Appellant relies on the decision in Stringer & Ors v HMRC [2009] UKHL 31.

1. The Employment Tribunal Chairman was asked for his comments by this Tribunal as to why there was no mention of the Stringer case. The material part of his reply reads as follows:

"Firstly I note that the relevant claim was specifically made as one for holiday pay in a paragraph which specifically also sought a sum in outstanding wages. Secondly, there is no reference in my notes of evidence of the hearing to my attention having been drawn to the decision of the House of Lords in Stringer. I am now aware that the decision was reported in August 2009 but I had not had the opportunity properly to read it and consider it by the time of this hearing on 4 September 2009. Thirdly, in so far as I held that Regulation 13(9) of the Working Time Regulations had effect, there was no suggestion by the claimant or his representative that such regulation might not apply in the circumstances now described by the House of Lords."

1. It is pertinent to note that neither party is here. The Appellant, understandably on grounds of costs, has said they do not intend to attend. No issue is taken about that. The Respondent is debarred by reason of the failure to file an Answer to the Notice of Appeal.

1. What is sought in the skeleton argument (see paragraph 4) relies on the judgment of Lord Neuberger in Stringer v HMRC previously known as Ainsworth v HMRC at paras. 66-68:

"66. The issue is whether a claim based on an alleged failure to make payments due under the Working Time Regulations 1998 ("the WTR") can be brought by way of a claim for unauthorised deduction from wages under Part II of the Employment Rights Act 1996 ("the ERA"). In particular, the issue is whether claims for payment in respect of periods of annual leave under regulation 16, and claims for payment in lieu of leave on termination of employment under regulation 14, of the WTR are claims for "holiday pay… referable to a worker's employment, whether payable under his contract or otherwise" within section 27(1)(a) of the ERA.

67. If the answer is in the negative, then such a claim could only be brought under regulation 30 of the WTR, in which case the limitation period is "three months … beginning with the date on which it is alleged that … the payment should have been made" - regulation 30(2)(a). But if the answer is in the affirmative, and the claim could alternatively be brought under section 23 of the ERA, the regime is more generous. While section 23(2)(a) has a similar three month limitation period, section 23(3) provides that, where there has been a "series of deductions or payments", the period starts from "the last deduction or payment in the series".

68. In my judgment, claims under regulations 14 and 16 of the WTR are claims within section 27(1)(a) of the ERA, and are therefore capable of benefiting from the section 23 regime. Like Lord Walker, I have reached this conclusion for two reasons, namely the language of section 27(1)(a) and the doctrine of equivalence."

1. That is a matter which is binding upon me. Therefore, the learned Employment Judge, having failed to have referred to that decision or having taken it on board, if I may say so, although the issue was not raised clearly and one has considerable sympathy with him and there is no criticism of him at all in my view, this appeal should be allowed as the judgment in Stringer is regarded as authoritative and binding.

1. The issue then arises as to what the order should be. Should I just make an order for £1,587.23, or should I remit the case back to the Employment Judge to reconsider the matter in the case of Stringer. The difficulty about the former course, namely merely substituting my own figure, is that really the written decision is the conclusions rather than the reasons. There does not seem to be any issue of finding of fact but no facts were in fact found in the decision. I am tempted to just substitute the figure myself but, on balance, I think in view of the fact that we do not know what evidence was accepted that this is a case where I should allow the appeal and refer the case back to be tried by the same Tribunal. It should be a very limited enquiry, one would have thought, just as it were to make the findings that would entitle the Claimant to the higher figure and to be satisfied that this was a case which on its facts amounted to one to which the larger figure for holiday pay could be allowed on the basis that the Claimant was within the provisions which allow a more generous attitude towards the limitation period.

1. I therefore allow this appeal and direct it to go back to the same Tribunal to consider the authority of Stringer.