The claimant was found to have been unfairly dismissed and the ET also awarded her accrued holiday pay (she had taken holidays but not been paid during that time off) for a period of more than one year before the termination of her employment. The ET did not reduce the award for contributory fault. The respondent appealed, raising two issues: 1) whether the ET should have made a finding that the claimant had contributed to her dismissal so as to produce a reduction in the basic and compensatory awards and 2) whether her entitlement to holiday pay should have been held to exist in respect of a period of more than one year before the termination of her employment.

The EAT rejected both aspects of the appeal. First there was no basis upon which the Tribunal found that she had been guilty of blameworthy conduct so as to give rise to a reduction in either of the two awards. On the holiday pay issue, the EAT rejected the respondent's submission that the award must have been made under the Working Time Regulations and, accordingly, could not have been in respect of a period of more than a year before the claim was brought.  It was difficult to tell from the ET judgment precisely how the argument about holiday pay developed.
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Appeal No. UKEAT/0386/12/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 5 February 2013

Before

THE HONOURABLE MR JUSTICE MITTING, MS K BILGAN, MR S YEBOAH

WAINWRIGHT & CUMMINS (APPELLANT)

SNOWDON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR ANDREW ALLEN (of Counsel)

Instructed by:
Wainwright & Cummins LLP
57-61 Atlantic Road
London
SW9 8PU

For the Respondent
MR ANDREW HOLMES (of Counsel)

Instructed by:
Morris Legal (Solicitors) Ltd
Central Boulevard
Blythe Valley Business Park
Solihull
B90 8AG

**SUMMARY**

UNFAIR DISMISSAL – Contributory fault

CONTRACT OF EMPLOYMENT – Sick pay and holiday pay

Whether Employment Tribunal should have reduced basic and compensatory award for unfair dismissal by reason of employee's conduct – no basis for doing so. Whether ET should have refused to award unpaid holiday pay accruing more than one year before dismissal – argument not clearly advanced by employer before ET – dependant on findings of fact not made by ET – no basis for allowing issue to be explored on appeal.

**THE HONOURABLE MR JUSTICE MITTING**

1. The Appellant was employed by the Respondent firm of solicitors from some time in 2005 until her employment was terminated on 26 November 2010. She brought a claim before the Employment Tribunal for compensation for unfair dismissal, for arrears of holiday pay and for an award in respect of a failure to provide written terms and conditions of employment.

1. The employers initially contended that she was self employed and not an employee but by the time the disputed issues came to be determined that issue was conceded. The claim, therefore, proceeded on the basis that she was employed, that she had been employed for the requisite period to give rise to the right to be protected against unfair dismissal, and, that she was entitled to holiday pay.

1. The Tribunal found in her favour on the contested issues and made a monetary award to her, ultimately, of £23,775.68. That was made up of four elements, all of which were adjusted as part of the review process. It is unnecessary for us to say more about that.

1. Two issues arise on this appeal. First, whether or not the Tribunal should have made a finding that she had contributed to her dismissal so as to produce a reduction in the basic and compensatory award under s.122(1) and 123(6) of the Employment Rights Act 1996. Secondly, whether her entitlement to holiday pay should have been held to exist in respect of a period of more than one year before the termination of her employment.

1. Mr Allen, who did not appear for the employers below, has made cogent criticisms of the reasoning of the Employment Tribunal. We accept that there is some justification for those criticisms. We have not found it easy to tease out all of the reasons for the Tribunal reaching the conclusions that it did. So as to understand the first issue, it is necessary to go back a little further than is customary on appeal, to the parties' cases, and then to see what is recorded of the evidence that they gave before the Tribunal and the Tribunal's conclusions about it.

1. One thing was clear. On 23 November 2010 the employers gave to the Respondent a hand written letter in these terms:

"Dear Christine

Further to our discussion 10 days ago I write to confirm our decision that it will not be possible or desirable for you to move with us to the new office in Atlantic Rd. I am engaged in a restructuring of the Family Department and a reduction of Secretarial support.

Your last day will therefore be Friday 26th November. Thank you for your contribution to the firm.

Regards."

The reference to a discussion 10 days earlier was, in fact, to an incident which had occurred 11 days earlier on 12 November 2010.

1. The Claimant worked for a solicitor in a secretarial capacity. Her hours had originally been 35 hours a week but were, in 2009, reduced to 24 to mirror the reduction in the hours of the solicitor for whom she worked. An incident occurred on 12 November 2010. She described it in her ET1 form as follows, having referred to the letter we have just cited:

"This letter refers to a discussion we had two weeks earlier when I had been preparing an urgent Trial Bundle for an imminent Court Hearing which involved me copying over a hundred documents, compiling them in readiness for the Judge, the barrister, the solicitors and our file copy, it had to be meticulously accurate. However Mr Cummins had sent the receptionist Linda out to the bank, and put my colleague Maggie Leondis (the only other secretary in our office) to pack up files near his desk. The main telephone was ringing and ringing when Mr Cummins glared at me and shouted to me 'Don't let the phones ring'. This is not the first time he has bullied me into submission to answer the phones when I had more important work in hand. I asked to have a word in private after he had stormed down to my desk.

I explained I had worked very hard for the company for nearly six years but couldn't understand why he expected me to answer the main switchboard and as I had only half an hour to my leaving time it was impossible to do both, particularly as I was also expected to book in new clients in the diary and shield the calls for six other solicitors, and welcome clients who walked in off the street. Also I mentioned I had not had a rise since I joined and this was not any incentive to me and would consider leaving. Mr Cummins said 'Come with us to the new office and see how you feel then'.

I replied 'Okay I will'. So as far as I knew I was still going to the new office with them which was imminent."

1. She reiterated her account of that incident a little later on in the form. She described Mr Cummins' attitude as an "aggressive stance", which forced her into answering a call that could easily have been answered by somebody else.

1. On the Respondent side and their form ET3 they described the incident as follows:

"On the afternoon of the 12th November 2010, the receptionist who was the principal recipient of telephone calls into the office was away from her desk and the Respondent noticed the telephone ringing incessantly. The Claimant, as she had often done in the past, was apparently ignoring the ringing phone. The Respondent was concerned that it should not lose business as a result and approached the Claimant and asked her to answer the phone. The Claimant responded vociferously and demanded that to speak to the Respondent's head of department Jonathan Cummins."

"That", in that context, must have been included by error:

"The Claimant regularly made it clear that she regarded answering the phone as an unnecessary and unwanted chore for her. Jonathan realised that their relationship seemed to be at an all time low. The Claimant agreed to 'part company' at the time of the move to the Respondent's new office at the end of that month."

1. On those two versions of the incident what had occurred was, it was common ground, that the phone had rung repeatedly and the Claimant had not answered it. Thereafter, the versions depart. She said that Mr Cummins glared at her and shouted at her not to let the phones ring and stormed down to her desk in an aggressive manner. The Respondent's version, based upon what he must have said, was that, as a result of her not answering the phone, relations had reached an all time low and the Claimant and Mr Cummins had agreed that they should part company. That contrasts with the Claimant's assertion that she had agreed to go to the new premises.

1. One thing can be observed. In the letter of 23 November 2010 no suggestion was made by the Respondent that the Claimant had been guilty of any misconduct. All that can be inferred from it is that there was a discussion ten days before, in fact on 12 November 2010, which led to the conclusion that it was not possible or desirable for her to move to the new office.

1. This issue appears to have been the subject of oral evidence before the Tribunal. Mr Cummins said that he was contemplating a reduction in the Claimant's hours before the incident occurred. He said that she was then unpleasant and rude to him and accused him and Mr Wainwright, the other partner in the firm, "of being greedy". He said that the Claimant was "unpleasant and menacing towards him". The Tribunal noted that the Claimant's account of the incident, as set out in her form ET1, was different.

1. One of the issues that the Tribunal had to determine before it got to the question of compensation was what was the reason for dismissal. The letter of 23 November 2010 clearly raised the possibility that it may have been by reason of redundancy. The Tribunal rejected that, noting that the decision of Mr Cummins was a spur of the moment decision and expressly preferring the evidence of the Claimant about the reason for her dismissal. In paragraph 4(34) the Tribunal found:

"We therefore prefer the evidence of the Claimant that the reason for her dismissal was the incident that occurred on the 12 November and for no other reason. We found as a fact that the Claimant was not redundant at the effective date of termination."

1. They had been invited in the pre-hearing meeting to determine whether or not the basic and compensatory award should be reduced to nil and, if not, whether they should be reduced at all. They made no express finding on which version of the events of 12 November 2010 they preferred, although they went some way to indicating what their view would have been if they had chosen to set it down on paper. In paragraph 4(36) they observed that at the Pre-Hearing Review the only reason that was put forward by the employers were conduct and/or some other substantial reason:

"There was no evidence before the Tribunal as to the Claimant's poor conduct apart from the incident on the 12 November which did not warrant in Mr Cummins' eyes at the time, the summary termination of her employment. We conclude that at most it would have warranted was a warning. As there was no other evidence of misconduct this cannot have resulted in a termination of the Claimant's employment."

1. That passage is not entirely clear. Clearly it rejects any suggestion that the basic and compensatory award should be reduced to nil but it also suggests that, in the Tribunal's view, the basic and compensatory award should not have been reduced at all. As far as the compensatory award is concerned, the statutory test is set out in s.123(6):

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

The words that we have quoted suggest, although they do not spell out with perfect clarity, that the Tribunal did not regard this dismissal as having been caused, to any extent, by conduct on the part of the Claimant, still less blameworthy conduct.

1. It is not our task as an Appellate Tribunal to substitute our findings of fact for those of the Employment Tribunal. Our task is, if we can, to discern what the Employment Tribunal's findings of fact were. To the extent that we can, we infer from the material that we have recited that the Tribunal found that there was no blameworthy conduct on the part of the Claimant capable of justifying a reduction in either the basic or compensatory awards. If we had not reached that conclusion we would have been hard pressed to discern in the material evidence upon which a properly directed Tribunal could have reached the conclusion that there was blameworthy conduct.

1. The Respondent's pleaded case was not that the Claimant was rude to Mr Cummins, or to any other member of the Appellant's staff, but simply that she responded vociferously to a demand that she answer the telephone. Hot words spoken towards the end of an office day by an employee who has served, as the Tribunal found, without ground for complaint for six years hardly amount to the sort of conduct which could be categorised as blameworthy so as to reduce a compensatory or basic award for what is otherwise an unfair dismissal. If the Tribunal had accepted the evidence of Mr Cummins - which on the basic issue why was the Respondent dismissed; they did not - then it suggests that what he was speaking of was something that she had said after it had been made clear to her that she was not moving with the firm to the new office, or that she had been told that because of the firm's requirements the need for her services would either be reduced or would disappear.

1. A comment that Mr Cummins or his partner were "greedy" cannot rationally be a response to a demand that she answer the telephone. If so then it is hardly likely that the comment would have been made before she was told that her services were no longer required, in which case it is very difficult to see how it could have been conduct relevant to the dismissal at all. That is speculation. All that we can do is, on the material that we have referred to, conclude that there was no basis upon which this Tribunal did find, in fact, that she had been guilty of blameworthy conduct so as to give rise to a reduction in either of the two awards.

1. We turn now to the second ground of appeal. The Tribunal made an award in respect of holiday pay going back to 1 December 2007. On appeal the Appellant's case is that that award must have been made under the Working Time Regulations and, accordingly, could not have been in respect of a period of more than a year before the claim was brought. It is difficult to tell from the record of the proceedings, and from the determination of the Employment Tribunal, precisely how the argument about holiday pay developed. It appears to have focused upon the Working Time Regulations but the Tribunal, from the language that it used, must have had in mind also an alternative route to recovering back holiday pay, namely ss.13 and 23 of the Employment Rights Act 1996.

1. What the Tribunal decided was, at paragraph 4(41), as follows:

"We are prepared to consider the Claimant's claim for holiday pay from the 1 December 2007 when it is accepted that the Claimant is an employee. The evidence before the Tribunal was agreed that the Claimant took annual leave from that date and the dates had to be agreed with the Respondent. Holiday was taken by the Claimant but she was not paid holiday pay when she took annual leave. This included absence on the 8 bank and public holidays. The Respondent's representative has referred us to the case of Lyons v Mitie Security Limited which was decided on different facts as it was decided in that case that holiday that had not been taken, could not be carried forward to the next holiday year. In this case the facts are different; the Claimant had taken holiday in the appropriate leave year but had not been paid. The failure to pay wages due in any year is an unauthorised deduction of wages as the Claimant was entitled to be paid her annual leave in accordance with the Working Time Regulations at the time when the leave was taken. This is therefore an authorised deduction of wages. The unauthorised deduction of wages commenced on the 1 December 2007 and was a continuing unauthorised deduction in respect of each and every holiday year as leave was taken but the holiday pay was not paid. We were referred to the Claimant's schedule of loss which calculates the daily rate to be £96 a day. We are prepared to award to the Claimant losses as follows […]"

They then set out the monetary calculation. In paragraph 4(42) they reiterated that:

"It is conceded by the Respondent that when the Claimant took annual leave she was not paid and there has been no submission that any amount of holiday pay has been paid to the Claimant. This is a breach of the Working Time Regulations and it is a continuing unauthorised deduction of wages."

1. In the passages cited, the Tribunal, by a typing error, said, "This is therefore an authorised deduction of wages". It is obvious that it meant an unauthorised deduction. Mr Allen did not contend otherwise.

1. In none of the preliminary materials or in the submissions of the Respondent as recorded by the Tribunal is there any suggestion that the Claimant was disentitled to recover arrears of holiday pay because she had not made her claim in time for the purposes of ss.13 and 23 of the Employment Rights Act 1996. S.13(1) provides:

"An employer shall not make a deduction from wages of a worker employed by him unless […]"

There are then set out two circumstances in which deductions may be made. Subsection 3 provides:

"Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion."

1. It is settled law that unpaid holiday pay falls within the definition of a deduction from wages under s.13(3) (see Her Majesty's Revenue and Customs v Stringer. There is no obligation on an employee who claims that she has not been paid holiday pay to bring the claim under the Working Time Regulations. She is entitled to bring it under those regulations insofar she is not shut out by reason of the lapse of time and/or the 1996 Act.

1. S.23(2) and (3) impose a time limit for claims under the 1996 Act:

"(2) Subject to subsection (4), an Employment Tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with—

(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

[…]

(3) Where a complaint is brought under this section in respect of—

(a) a series of deductions or payments, or

[…]

the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the payments so received."

1. Thus, if in the three months before the presentation of the Claimant's ET1 form on 21 January 2011 any deduction, as explained, had been made in respect of holiday then she was entitled to claim not merely for that deduction but for all unauthorised deductions leading up to that time, as the Tribunal found, from 1 December 2007 onwards.

1. Whether or not a claim under the 1996 Act was brought in time depended upon factual findings. There were two bases upon which a continued series of deductions could have been held to have existed. First, that she had taken a holiday of one day or more than one day after 21 October 2010. Secondly, that she was entitled to carry forward one or more days of paid holiday as at the date on which she was dismissed. Because the employers did not take this point clearly or at all before the Tribunal, this issue was not explored. It has been raised, therefore, for the first time before us.

1. We are an Appellate Tribunal whose function is to correct errors of law made by an Employment Tribunal. It is no part of our function, save in exceptional circumstances, to permit either side to advance arguments that depend upon findings of fact that we cannot make at the Appellate stage (see Glennie v Independent Magazines (UK) Limited. We simply do not know what the Claimant's answer would have been to this proposition. It is, in our judgment, far too late for the employers to raise it by way of appeal now and it would be unjust to the Claimant, who is a lady, as far as we can tell, of limited means, to require her to undergo a further hearing before the Employment Tribunal to investigate and reach conclusions about these issues. It was for the employers to lay out their case before the Tribunal. They lost on all of the parts of their case that they did advance. This was capable of being an important aspect of their case and would have made a material difference to the monetary award, in fact, made. It is simply too late now to raise it and it would, we are satisfied, be unjust to require the issue to be explored at a remitted hearing, whether the remission as to a Tribunal would originally determine this claim or, as Mr Allen suggests, to a freshly constituted panel.

1. For those reasons, the two grounds of appeal now advanced are refused and this appeal is dismissed.