Appeal No.	 EAT/766/02/TC

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 March 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
MS K BILGAN
MR J R CROSBY

ANDREW WILLIAM ARMSTRONG	APPELLANT

WALTER SCOTT MOTORS (LONDON) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR TOM WALKLING
Representative
Free Representation Unit
Peer House
4th Floor
8-14 Verulam Street
London WC1X 8LZ	
For the Respondent	MR MARK WALSH
(of Counsel)
Instructed by:
Messrs Edwards Duthie
Solicitors
292-294 Plashet Grove
East Ham
London E6 1EE	

HIS HONOUR JUDGE J McMULLEN QC

1	This case is about dismissal for assertion of a statutory right. We will continue to refer to the parties as Applicant and  Respondent

2	It is an appeal by the Applicant in those proceedings against a reserved decision of an Employment Tribunal, sitting at London South Chairman Mr CP Baron promulgated with Extended Reasons on 27 August 2002. The parties were represented by counsel

3	The Applicant claimed unfair dismissal and breach of contract in the terms relating to holiday pay/ The Respondent denied that it had dismissed him unfairly and denied his entitlement to make a claim.  It also denied the breach of contract allegations.

The legislation  
4	The legislation is provided by section 104 of the Employment Rights Act 1996 as follows:
“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee -
(a)  brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or
(b)  alleged that the employer had infringed a right of his which is a relevant statutory right.
(2) It is immaterial for the purposes of subsection (1) -
(a) whether or not the employee has the right, or
(b) whether or not the right has been infringed.  
but for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.
(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.
(4) The following are relevant statutory rights for the purposes of this section -…
	(d) the rights conferred by the Working Time Regulations 1998”

5	Those Regulations came into effect on 1 November 1999 and provided for a progressive entitlement to twenty days annual holidays for each worker covered by them.  Those holidays may be taken when they have been earned, and an employer is not entitled to deny paid holidays for a period of six months or twelve months

	The issue
6	The essential issue, as defined by the Employment Tribunal in this case, was to determine the dismissal of this Applicant and whether it fell within section 104.  The Tribunal found that it did not and by a majority Decision.  Unanimously it dismissed the Applicant’s claims for accrued holiday pay and breach of contract.  The Applicant appealed against that finding on grounds set out in the Notice of Appeal.  Directions in this case appear to have led to a full hearing today.  

	The parties
7	The Respondent is a car dealership, offering for sale new and old cars in the West End of London, with one hundred employees.  The Applicant was employed from 1 November 1999 as a member of the sales team.  He was dismissed on 11 October 2000.  

8	The disputes between the Applicant and the Respondent as to the reasons for the dismissal were all resolved by the Employment Tribunal in favour of the Applicant.  The Tribunal rejected the evidence of the Respondent and held that the Applicant had been dismissed because he had written a letter on 31 August 2000.  In relevant part the letter provides as follows:
“As you know I have been employed by Scotts Audi since 1st November 1999, based at Pavilion Road.  I can say without question that it has been a very happy time for me, I enjoy very much working with my colleagues and the job satisfaction is the best I have ever experienced.  
However, certain elements of my employment have given me cause for concern and upset.  I am referring mainly to the holiday leave entitlement.  During my interview with you and Chris Pierce in October 1999 we discussed in varying detail issues relating to the position as offered, (and subsequently accepted).  Among those issues raised was holiday entitlement.  I was told that I would have 20 days leave per year, along with public holidays.  I was also informed that I could not avail of leave during the initial 6 months of employment.  If you recall, I had already booked a holiday prior to handing in my notice at H R Owen, for one week, and I agreed to take that week as unpaid leave.
At no time was I informed that I would not accrue leave entitlement during the first year of employment, as set out in the staff handbook, (Chapter 7a).  I quote ‘The holiday year commences 1 April each year, and you will be entitled to 1.67 days paid holiday for each calendar month of employment completed by you in the previous holiday year’.  The words ‘in the previous holiday year’ are the offending ones.  As I said earlier, this was never mentioned at interview.  At no time was any period other than 6 months mentioned, and the implication was that I could ‘not avail’ of leave, compared to ‘not accrue’.  It is only now after close examination that this ambiguous and misleading criteria has come to light.  I find this requirement morally indefensible in this day and age.  I find it astonishing and enfuriating that such a requirement was ever enforced, and fail to understand how any employee could be expected to work for a full year without taking leave …….
In writing this letter I wish to ask of you two things.  Firstly, I am requesting that you authorise leave entitlement as that implied during our first meeting, to run from 1st November 1999. ……..
Please accept this letter in the spirit it is written.  I am not an anarchist in any shape or form.  I am merely putting my thoughts to you as honestly as I can.  I want nothing but success for Scotts, and would like nothing better than to conclude my working years with the company.”
We have omitted the second complaint the Applicant made concerning the rota, which is not relevant to the proceedings.  It is sufficient to note that the Applicant was making complaint about two matters, but for our purposes, only the holiday entitlement is in issue.  

9	The Tribunal decided, unanimously, that the Applicant had been dismissed for writing that letter.  He had obviously taken steps to consider whether it was appropriate to write it, and, contrary to advice he had received from a colleague, he did send it to the Head of the Company.  The division at the Employment Tribunal was as to whether or not this fell within section 104(1).  The Tribunal noted that the division concerned the interpretation of that section.  

10	The minority acknowledged that the Working Time Regulations entitle a worker to be paid leave on a current year basis.  It is accepted by Mr Walsh, appearing for the Respondent, that both the restriction of six months, at interview, and twelve months in the handbook of holiday entitlement is unlawful and a breach of the Regulations.  The minority member decided that the Applicant had made it reasonably clear to his employer that he was claiming a breach of a statutory right. He also decided that the Applicant, in invoking the Respondent’s grievance procedure by writing the letter, had also complied with section 104(1)(a), i.e. bringing legal proceedings 

11	On the other hand, the majority decided that more was required in the sense of making reasonably clear to the employer what right was infringed.  The majority said this:
“in alleging that there has been a breach of a relevant statutory right, an employee has to go further than the Applicant did in this case.  Here the Applicant was saying that the Handbook did not accord with the oral agreement.  He spoke of the Staff Handbook as being ‘morally indefensible’.  There was no suggestion of any failure of the Respondent to comply with any statutory right, as opposed to contractual arrangement or moral obligation.  The majority are of the opinion that section 104 requires that the Applicant must state that he is complaining of a breach (or alleged breach) of a right which he had as a matter of general law (as opposed to private contract), and here there was no such complaint.”

That division at the Employment Tribunal is reflected in the submissions by Counsel today.  Each cleaves to the majority or the minority respectively.  It is clear that the Employment Tribunal directed itself to the relevant statutory provision.  

The contract
12	The references to the handbook and the contract require a certain elaboration.  The Applicant was handed a document entitled “Contract of Employment”.  It is expressly purporting to discharge the Respondent’s obligation under Part 1 of the Employment Rights Act 1996 to ensue that details are given of certain aspects of the employment relationship.  Together with this document was the handbook, to which the employee is referred, for amplification of certain of the matters.  The particulars include the operation of a grievance procedure, although the provisions of the grievance procedure are not to be contractually binding upon the parties.  

13	As to working time, the Applicant has contracted out of the Working Time Regulations.  It will be recalled that these Regulations came into force on the same day as the contract.  He has signed a waiver in accordance with Regulations 4(1) and 5(1) so that he can work more than a 48 hour week.  It is clear, therefore, that both the Applicant and the Respondent had well in mind at the time they signed this document on 14 October 1999, the relevant statutory provision.  In addition, there is a non-waiver clause which provides in relevant part as follows:
“Any failure, delay or forbearance by the Company in exercising any of its rights, powers or privileges under this contract shall not constitute a waiver of that right, power or privilege or acquiescence to the relevant conduct or course of conduct……”

There is also a whole agreement clause indicating that the contract and the terms incorporated into it from the Staff Handbook contains the whole agreement.  Thus, the Respondent has indicated that the document contains a number of significant rights.  

The Legal Principles
14	It is accepted by both Counsel that the scope of the Tribunal’s enquiry was confined to the letter.  Of course, the letter arose in a context, but the Tribunal did not spend time on examining in detail the context in order to consider the construction of the letter.  In our judgment, the proper approach is to consider that document, and if it is unclear, to draw upon the context. This is not a case in which there was the expression of a view by the Tribunal as to the reality of the position; in our judgment, the matter can be resolved by analysis of the letter We thus hold that we have jurisdiction to consider the matter as a question of law, since it falls within the category set out in Lord Justice Buxton in The Housing Corporation -v- Bryant [1999] ICR 123 CA 130F.  

Conclusion
15	It seems to us that the Applicant was asserting that no one should be forced to wait a year before being entitled to take paid holiday.  He is right; no “worker” in the European Union is required so to do.  He was not simply asserting the distinction between what he was promised at interview and what appeared in the handbook. He is, of course, saying that, making the more general point, that he alone among all workers, is required to submit to that condition, see, for example, his reference to “how any employee can be expected to work” and “morally indefensible in this day and age”.  

16	He was making it reasonably clear to his employer that he had a right, in common with all others, not to have to wait for a year in order to take his holiday.  That is a right under the Working Time Regulations, in other words, pursuant to section 104(2). He did have a right and it had been infringed in his case, and so at least those parts of the statute are drawn into play.  It seems to us that on looking at the letter and, indeed, in the context of its conciliatory tone at the end - seeking to continue the working relationship - the Applicant is indeed making an allegation that the Respondent is infringing a right of his under the Working Time Regulations . 

17	We allow the appeal.  This will be remitted to the same Employment Tribunal for a remedy with our judgment substituted for the majority judgment.  Fourteen days from today, Mr Walkling please, your client is to lodge and serve on the Employment Tribunal the witness statement relating to remedy and schedules of loss.  Evidence in reply and counter schedule twenty-eight days from today.  We impose a strict timetable on this because this case is now quite old.  Agreed estimate one day.