Appeal No. EAT/0483/02/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 March 2003

Before
HIS HONOUR JUDGE PETER CLARK
MISS C HOLROYD
MR A D TUFFIN CBE

MS A MITCHELL AND OTHERS	APPELLANTS

AMERSHAM & WYCOMBE COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR FEMI OGUNLENDE
Free Representation Unit
Peer House
4th Floor
8-14 Verulam Street
London
WC1X 8LZ	
For the Respondent	MISS J McNEILL QC
(Of Counsel)
Instructed by:
Messrs Reynolds Porter Chamberlain
Solicitors
Chichester House
278-282 High Holborn
London
WC1V 7HA	

JUDGE PETER CLARK

1.	This is an appeal by Ms Mitchell, Ms Lynn and Mr Nagulendran, part-time lecturers employed by the Respondent College, against a decision of the London (Central) Employment Tribunal promulgated with extended reasons on 22 March 2002, dismissing their complaints of failure to pay holiday pay contrary to the Working Time Regulations 1998 (the Regulations).

2.	We first deal with a preliminary point taken by Ms J McNeill QC on behalf of the Respondent.  She tells us that the Respondent has offered to pay in full the amount of the money claims brought by the Applicants; that Ms Lynn has now left the Respondent’s employment and that the other 2 Applicants have signed new contracts with the Respondent which contain express terms as to holiday pay.  In these circumstances she submits the appeal is rendered academic and ought not to be entertained by the appeal tribunal.  She relies upon the statement of principle contained in the speech of Lord Bridge of Harwich in Ainsbury v Millington (Note) (1987) 1 WLR 379.  We have been taken to recent correspondence between the parties.  Asked to quantify the respective money claims of the Appellants, Mr Ogunlende did so by letter dated 19 March 2003; they were Ms Mitchell £504.31, Ms Lynn £78.25 and Mr Nagulendran £799.94.  He went on to say in that letter that in addition to their money claims the Appellants also sought a declaration that the practice of paying a rolled up hourly rate to include a holiday pay element is impermissible under the Regulations.  By letter dated 27 March the Respondent’s solicitors indicated their client’s agreement to the figures advanced, without admission of liability.

3.	As to the question of a declaration Ms McNeill has taken us to the scheme of Regulation 30, the remedies provisions under the regulations.  We see that by virtue of Regulation 30(1)(a) and Regulation 30(3)(a) a worker is entitled to a declaration that his complaint of a breach of, among other provisions Regulation 13, is well-founded.  Regulation 13 provides a worker’s entitlement to 4 weeks annual leave.  That right has never been in dispute in this case and it is common ground that the Appellant have taken their full leave entitlement.

4.	Regulation 16(1) provides that a worker shall be entitled to be paid in respect of any annual leave to which he is entitled under Regulation 13(1).  It is that entitlement which the Appellants claim has not been observed in this case, as their Originating Applications to the Employment Tribunal make clear.

5.	The remedy for breach of Regulation 16(1) is governed by Regulation 30(1)(b) and (5).  Under sub-Regulation (5) there is no right to seek a declaration (cf Regulation 30(3)(a)); only to an order that the employer pay to the worker the amount which it finds to be due to him.

6.	In these circumstances we are not persuaded that the Appellants are entitled to seek the declaration effectively sought by Mr Ogunlende on their behalf.  We think that the position in this case is different from that in Telephone Information Services Ltd v Wilkinson [1991] IRLR 148 (EAT Tucker J presiding) to which Mr Ogunlende referred us.  There the question was whether the payment of the maximum sum recoverable in an unfair dismissal claim, without admission that the dismissal was unfair, formed the basis for the claim to be struck out.  The Employment Appeal Tribunal held that it did not, on the basis that the Applicants’ claim was not simply for a monetary award; it was a claim that he was unfairly dismissed.  There exists a statutory right not to be unfairly dismissed; see now Employment Rights Act 1996 Section 94(1).  It is plainly of importance to an Applicant who claims that he has been unfairly dismissed to obtain a finding to that effect not least for the purposes of obtaining future employment.

7.	In these circumstances it seems to us that an offer by the Respondent to pay the full money claims of each Appellant, albeit without admission of liability, removes the dispute between the parties.  We shall not in these circumstances embark on the academic exercise, interesting though it is, to which Mr Ogunlende wishes to take us.

8.	In reaching that conclusion we bear in mind the approach of the Court of Appeal in the leading case on Regulation 16 of Gridquest v Blackburn [2002] ICR 1206.  Having disposed of the appeal in that case the Court of Appeal declined to rule on a further policy argument advanced by Counsel on behalf of the Applicants, on the basis that it was not necessary or appropriate to do so in that case (see per Pill LJ paragraph 15).  It is precisely the same policy argument which Mr Ogunlende wishes to advance before us today.  We, similarly, find it neither necessary nor appropriate to entertain that argument in circumstances where the lis between the parties has been resolved by the offer of full payment of these claims, being the only relief to which the Appellants are entitled under Regulation 30(5) of the Regulations.

9.	In these circumstances we shall stay this appeal on the basis that provided the Respondent pays to the Appellants the sums respectively mentioned earlier in this judgment within 14 days of today this appeal shall stand dismissed.  In the event that payment is not then made the stay will be lifted and the appeal re-listed for hearing.