Appeal No.	 EAT/84/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 January 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR L D COWAN
MR P DAWSON OBE

MRS P DYKES AND MR J DYKES	APPELLANTS

KETTERING RIFLE BAND CLUB LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR C HARRISON
Representative
Citizens Advice Bureau
The Oasis Centre
10 Market Street
Kettering
Northants NN16 OAH	
For the Respondent	No appearance by or on behalf of the Respondents	

	JUDGE CLARK:	The Applicants before the Leicester Employment Tribunal, Mr and Mrs Dykes, were employed respectively as Club Steward and Assistant Club Steward by the Respondent club from 1 May 1994 until their summary dismissal on 29 November 1995.  Following their dismissal, they brought complaints of unfair dismissal and unlawful deductions from wages before the Employment Tribunal.  We are solely concerned with that latter claim which related to unpaid holiday monies.

	The matter first came before the Employment Tribunal, chaired by Mr D Price on 16 August 1996.  By a decision promulgated with extended reasons on 23 August 1996, the Tribunal found that Mr Dykes was entitled to 15 days accrued holiday pay and Mrs Dykes to 3 days holiday pay on termination of their employment.  The Tribunal found that Mr Dykes worked a 6 day week at the rate of £36.50 per day and Mrs Dykes a 4 day week at the rate of £18.50 per day.  On that footing, the Tribunal assessed the loss in respect of unpaid wages as follows:  Mr Dykes 15 days at £36.50 = £547.50 and Mrs Dykes 3 days at £18.50 =£55.50.

	Following promulgation of those awards, the Appellants applied, by letter dated 4 September 1996, for a review.  It was contended that on the evidence led, Mr Dykes was entitled to 17 days accrued holiday pay and Mrs Dykes 11 days.  Using the Tribunals multiplicands, that would lead to awards of £620.50 and £203.50 to Mr and Mrs Dykes respectively.

	The case came back before the same Tribunal on 11 November 1996.  The Tribunal allowed the review application and reconsidered its first decision.  It accepted the Appellants’ case as to the correct multiplier of 17 and 11 days respectively but also raised a further point in relation to the multiplicand.  The Chairman drew the Appellants’ representative, Mr Harrison’s attention to the decision of this Tribunal in Thames Water Utilities v Reynolds 1996 IRLR 186 and asked him to address the Tribunal on the application of the Apportionment Act 1870 in relation to the definition of a days pay.  In the event, the Tribunal recast the quantum of a days pay in each case by taking the annual pay of each Appellant and dividing by 365 and that resulted in revised figures of  £31.20 per day for Mr Dykes and £10.68 for Mrs Dykes, leading to final awards of 17 x £31.20 = £530.40 for Mr Dykes and 11 x £10.68 = £117.48 for Mrs Dykes.

	Against that review decision, promulgated with extended reasons on 18 November 1996, the Appellants appealed by a Notice dated 9 January 1997.  On 24 October 1997, a division of this Tribunal presided over by Lord Johnston allowed the appeal to proceed to a full appeal hearing.  That inter partes hearing was convened before a division presided over by Judge Hull QC, sitting on 21 July 1998.  On that occasion, neither party appeared or was represented.  We should say that the Respondent has not filed an Answer nor taken any part in this appeal and does not appear before us today.

	Judge Hull and his colleagues directed that the parties file affidavit evidence, that the Chairman provide his comments and they adjourned the appeal on that basis.  Mr Harrison has made an affirmation dated 27 August 1998 but the Respondent has not taken any action pursuant to that direction.  

	The matter now comes before us on a resumed hearing.  Mr Harrison submits that the Apportionment Act does not apply in this case and that the calculation of a days holiday pay ought to be made by reference to the number of working days in the week, that is, the original basis accepted by the Employment Tribunal at the first hearing.  We have considered the statement of terms and conditions of employment issued to Mr Dykes and exhibited to Mr Harrison’s affirmation.  It is clear to us that the provisions of the Apportionment Act have not been expressly excluded (cf Section 7 of the Act).  Further, it is plain from the Chairman’s letter  to this Tribunal dated 1 October 1998, that on review the Tribunal concluded that the Appellants were paid an annual salary and that the correct apportionment was 1/365 of the annual salary.  In our judgment, that approach is consistent with this Appeal Tribunal’s approach in Thames Water v Reynolds and is correct in law.  Accordingly, we can find no grounds in law for interfering with the Tribunal’s review decision and this appeal must be dismissed.