Appeal No.	 EAT/35/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 March 1997

Before
HIS HONOUR JUDGE PETER CLARK
MRS D M PALMER
MR R SANDERSON OBE

MR I W WITTY	APPELLANT

STAMPS SOLICITORS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	NO ATTENDANCE OR REPRESENTATION ON BEHALF OF THE APPELLANT	

	JUDGE PETER CLARK:   The appellant was first employed by the respondent solicitors in October 1994. In June 1996 it was decided by the respondent that he should be dismissed. The parties agreed that he would work out one month’s notice expiring on 31st July 1996.

	His gross monthly wage was £1,000.

	In fact he worked only until 15th July 1996.

	Following termination of his employment his final payment was £636.36 gross; £527.70 net. 

	On 15th August 1996 he presented a claim for damages for breach of contract to an Industrial Tribunal. His pleaded case was:

“It was agreed at a meeting in June 1996 that my employment would be terminated on one month’s notice expiring on the 1st August 1996 entitling me to payment of the gross salary of £1,000 for the month of July. The Respondent by device of improper calculation has paid to the Applicant only the sum of £636.36p.”

	By their Notice of Appearance the respondents countered:

“2. Whilst initially being adamant that he must work out his notice for the purpose of attending to work necessary to files under his control, the Applicant subsequently approached Jill Greensmith of the Respondent firm requesting that he be released from his employment with immediate effect. Whilst initially reluctant, the Respondent eventually acceded to that request releasing the Applicant from the 17th July 1996.
3.  In the above circumstances, the Applicant’s employment terminated by agreement on the 17th July 1996 to which date the Applicant was paid his salary and further received approved holiday pay.”

	The matter came before a Chairman of Industrial Tribunals, Mr A J Simpson, sitting alone at Hull on 8th November 1996.

	The Chairman heard evidence from the appellant and Mrs Greensmith, the respondent’s practice manager. He made the following material findings.

	It was agreed that the appellant would leave the employment on 15th July and would take the remainder of the month by mopping up the holidays to which he was entitled. The question was, to what extent was he entitled to outstanding holidays.

	The appellant’s evidence was that he had only taken five days holiday in the previous two years. When it was put to him that he had taken more than five days holiday he adjusted his evidence to say that he had only taken five consecutive days.

	It appears that the holiday year commenced on 1st May. According to the respondent’s calculations, which the Chairman accepted, the appellant had taken a total of 16 days holiday, out of the contractual entitlement of 20 days, for the holiday year 1995/96.

	For the part holiday year 1st May 1996 - 31st July 1996, he was entitled, pro rata, to five days holiday. He had in fact taken four of those days, leaving a balance of one day.

	Carrying forward the four days outstanding for 1995/96 that gave a total of 5 days holiday pay to add to the ten days worked during July up to 15th of that month.

	The respondent calculated the gross daily rate of pay to be £45.54. That gave an agreed basic pay total of £454.54 gross; the five days holiday pay was calculated to be £181.82; making a total for the month of July of £636.36, which nets down to £527.70 after tax.

	In short, the Chairman accepted the respondent’s case in its entirety and dismissed the claim. His reasons for so doing are in a decision promulgated on the 21st November 1996.

	Against that decision the appellant now appeals. He has not attended today for medical reasons, but we have taken into account his Notice of Appeal and written submissions faxed to the appeal tribunal on 20th March 1997.

	His first point is that there is a mathematical error in the respondent’s calculation of five days holiday pay at £45.54 per day. The sum is £227.15, not £181.82. Therefore he has been underpaid by just over £45 gross.

	That is not a matter for appeal. The respondent’s witness, Mrs Greensmith, produced in evidence a personal deduction sheet which showed the erroneous calculation. it was for the appellant to raise the point in cross-examination; and he acknowledges in his written submissions that he did not so. He cannot now take the point, having failed to take it below. Kumchyk v Derby County Council [1978] ICR 1116.

	His second point is that he was contractually entitled to 20 days holiday per year. The employment lasted 1 year 9 months. Accordingly he was entitled to a total of 35 days holiday overall. There was evidence from the respondent only that he had taken 20 days holiday since 1st May 1995. He says that Mrs Greensmith was asked about the period up to 30th April 1995 in evidence. She said she did not have the documents with her relating to that period. In these circumstances, submits the appellant, he ought to have been credited with a total of 15 days holiday which would have completed the month of July 1996.

	Further, he says that he would have taken that point in closing submissions, but the Chairman proceeded to deliver his decision without giving the parties a chance to address him at the close of the evidence.

	In our judgment the answer to that submission is that as a matter of law, in the absence of an express term, the court will not imply a term that unused holiday can be carried forward to the next holiday year. See Morley v Heritage PLC [1993] IRLR 400. It seems that the respondent was prepared to carry forward one years unused holiday to the next, but not earlier years, assuming that there was unused holiday entitlement in the holiday year ending 30th April 1995.

	In these circumstances we shall affirm the Chairman’s decision and dismiss this appeal.