Appeal No.	 EAT/740/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
THE HONOURABLE MRS JUSTICE SMITH
MRS T A MARSLAND
MRS R A VICKERS

MR G COOK & OTHERS	APPELLANTS

HAROLD NIGHTINGALE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE BY
OR REPRESENTATION 
ON BEHALF OF THE 
APPELLANTS	

	MRS JUSTICE SMITH:     These are the preliminary hearings of the appeals of five Appellants against a decision of an Industrial Tribunal Chairman sitting at Hull on 27 February 1998.  None of the Appellants has attended to argue that there is a point of law for the consideration of the Employment Appeal Tribunal.

	The Industrial Tribunal Chairman, faced with claims in respect of holiday pay and past wages owing at the time of the termination of contracts of employment, made orders in favour of each of the five Applicants then before him.  However, the Applicants were dissatisfied with the amounts of money awarded to them and dispute the basis upon which the Chairman reached his conclusion, albeit that it was favourable to them to some extent.

	The Appellants were 5 of 9 employees of the Respondent’s garage business.  All had been employed for a substantial length of time.  All were made redundant on 25 March 1997, because the garage was closed down.  Some of the men worked on until various dates up until the end of June.  The five Appellants brought claims for holiday pay which they had not been paid at the termination of their employment.  Some also claimed that they had been working a week in hand and they sought payment of those wages.  However, no issue arises on this appeal out of that aspect of the case.  

	The Tribunal Chairman heard evidence only from the Appellants themselves.  The Respondent did not appear, although he was represented.

	The Chairman found that there had been no written contract of employment or any written statement of terms and conditions for the five men.  He found their evidence on what had been agreed and what had occurred at the beginning of their employment to be very vague.  That was not surprising as they were trying to recall events which had taken place during the 1980s.  However, the Chairman formed some conclusions.  First, he was satisfied that the employer calculated holiday entitlement by reference to a year starting on 1 April and ending on 31 March of the following year.  During that period each man had an entitlement of 22 days holiday with pay, accruing at the rate of 1.7/8 days for each month worked.

	It was the Appellants’ contention that when each of them began their employment, they did not take any holiday during the first year and that they accrued an entitlement to 22 days holiday which could be carried forward.  In effect, their contention was that from year to year they had a year’s holiday entitlement in hand.  The Chairman was not prepared to accept that.  He said that the accounts given were conflicting and he was not satisfied of the accuracy of the evidence.  He did accept that there probably was a practice whereby a man who had not used all his holiday entitlement in one year was allowed to carry it forward into the next, but he would not accept that the men were entitled to accrue all their unused holiday entitlement and carry it forward on an indefinite basis.  This was the argument advanced certainly by one of the Appellants, Mr Webster, who gave evidence that over the last seven years he had taken 137 days holiday.  In that period he would have been entitled to 154 days holiday and he therefore claimed that he was entitled to holiday pay for the balance.

	The Chairman rejected that argument.  He found that the Appellants were entitled to be paid only for the holiday pay which had accrued during the year of the dismissals.  That was the basis upon which he made his findings.  

	In this appeal, it is submitted that his decision was perverse because all the witnesses for the Appellants were of one view, that they were allowed to carry forward their holiday entitlement and that they worked a year in hand.  As there was no evidence from the Respondent, the Chairman was perverse in his refusal to accept and act upon the Appellants’ evidence.  

	We reject that submission.  The Chairman has explained why he found the Appellants’ evidence unsatisfactory.  He said that it was vague, because it related to a period of time some years ago and that there were conflicts between the Appellants themselves.  

	This Tribunal has no jurisdiction to re-examine the findings of fact made by an Industrial Tribunal Chairman.  We have only the jurisdiction to correct his errors of law.  No error of law has been identified and we are quite satisfied that this decision was not perverse.  In those circumstances, this appeal must be dismissed at this preliminary stage.