Appeal No.EAT/0868/02 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 October 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
(SITTING ALONE)

MR B G DOWNES	APPELLANT

(1) EVENSURE MANAGEMENT	RESPONDENTS
(2) MR E S GILES
(3) MR D A LLARIA

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	

HIS HONOUR JUDGE J McMULLEN QC

1	This is an appeal against the Decision of an Employment Tribunal Chairman sitting alone, Mrs J Hill, on 1 February 2002, promulgated with Extended Reasons on 11 February 2002.  The Applicant in those proceedings included the present Appellant, Mr Downes.  There were two other Applicants.

2	The case was heard by the Chairman under the jurisdiction for Chairman alone hearings to hear a case relating to the failure by the Respondent, it was claimed, to pay to the Applicant the correct amount of holiday pay, and thus it was an unlawful deduction. I am, of course, dealing with this case under section 28 (4) of the Employment Rights Act 1996, i.e. as a judge alone.

3	The Applicant and his colleagues were employed as security guards.  They were on a 12-hour shift.  They worked an average of 42 hours per week.  Their holiday entitlement was 25 days.  The question arose as to what was the appropriate payment for a day of holiday.  The Applicant contended that it should be 12 hours pay.  The Respondent contended that it should be the rate paid on average which would be 8.4 hours.

4	The contractual documentation which was before the Chairman was the subject of some confusion since the very long Originating Application included extracts from various contracts of the three Applicants, but the essential parts, as now clarified, appear to be as follows:

3	“Normal hours of work.
A full-time employee may be required to work by day or by night at the assignment to which he is assigned which may be subject to change at short notice according to operational requirements.  A working week normally consists of five shifts the length of which are determined by the assignment at which employed.
Holiday Entitlement
(a)	Holiday entitlement will………………..on completion of 15 months employment increase to 25 days per annum (5 weeks).

(b)	Holiday money is paid at your normal assignment rate.  Payment is based on average weekly hours worked to a maximum of 60 hours per week for full-time employees.”

5	There was no dispute that the Applicant received pay while he went on holiday.  It was accepted that the Applicant worked a 42-hour week on average.  The particular method of calculating the holiday pay was to make a payment based on the average number of hours worked in the preceding 6 weeks.

6	The Respondent’s case was that if the Applicant were to be paid for every one of 25 days at the rate of 12 hours he would be receiving holiday pay at a rate far higher than his actual working hours.  In other words, if the Applicant took a whole week he would therefore be excused from attendance for, in a simple case, 42 hours and yet would, on his case, be entitled to receive 60 hours pay.  Thus is it that the Respondent’s contention that the average hours should be divided by five is correct, in my judgment, as a matter of construction of this particular contract.  I hold that the correct construction is that the Applicant on a day’s holiday is entitled to be paid 8.4 hours.

7	That is not an end of the appeal, however.  The Applicant has indicated that he challenges the procedure adopted by the Chairman.  He is not here today because I have received an indication as to the severe illness which the Applicant suffers from and I am very sorry to hear that he is so seriously ill.  But he invites me to read the papers and to deal with the matter on his written submissions.

8	The Applicant criticises the procedure adopted by the Chairman.  He says:

6.0	(a)	“The Chairperson, Mrs Hill, had no understanding of the case that had been brought before her…She even had the audacity to rebuke one of my colleagues, who was endeavouring to make a point, claiming that she was far more experienced and in a far better position to make a judgment that he was!  Throughout the hearing she treated us like recalcitrant school children!”

9	The Chairman, in her comments, said this:

“I heard the application of both sides by submission only and retired to read the paper work and to check the position under the contract of employment.  The contract ran to 2 pages, only 2 clauses of which were relevant to the issue of holiday pay.
The case involved interpretation of the contract.  The Applicants were adamant that their interpretation was correct. They were quite forceful in stating their views.  On occasion I had to remind them that interpretation of contracts was one of the usual functions of a Tribunal.  It is perhaps for that reason that it is suggested that the Applicants were treated like recalcitrant school children.”

10	The conduct of the Chairman is also the subject of further criticism, since the Applicant regards it as inappropriate for her to give her own interpretation of the contract.  He also goes on to say:

6.0	(g)	“Mrs Hill also had the audacity to admit that our contracts of employment are ambiguous, decides that her interpretation of what the contracts are actually stating and then claims that our claim has no foundation!  I find this to be completely outside the powers of her position and a complete travesty of a justice system that she is supposed to uphold.”

He also considers that it was rubbing salt in the wounds of the Applicant for the Chairman , in her Reasons to invite the Respondent, to make the contracts clearer.

11	It seems to me, having read what the Applicant says about his perception of the role of the Chairman, that he is under a fundamental misconception.  It has been the role of judicial officers in this country for at least 800 years to interpret documents and to give affect to the intention, objectively determined, of the parties to, for example, a contract of employment.  The Chairman was precisely discharging the duty entrusted to her under the statute by parliament, that is to determine a questions of law, which this is.

12	Given that the Applicant misunderstands the role of the judicial officer in giving his or her interpretation of a document, it is not surprising that he feels aggrieved about the way in which the Chairman gave her interpretation.  As I have indicated, that is not only proper it is her duty and she discharged it perfectly in this case.

13	The appeal is dismissed.