Appeal No. UKEAT/0009/05/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 June 2005

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR D JENKINS
MR A E R MANNERS

BRITISH AIRWAYS PLC 	APPELLANT

(1) MR A NOBLE
(2) MS M FORDE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS MONICA CARSS-FRISK 
(One of Her Majesty’s Counsel)
MR DAVID CRAIG
(of Counsel)
Instructed by:
British Airways Plc 
Legal Department
Waterside (HBA3)
West Drayton
P O Box 365
Harmondsworth
Middlesex UB7 0GB
	
For the Respondent	MR ANDREW HOGARTH
(One of Her Majesty’s Counsel)
Instructed by:
Messrs O H Parsons & Partners
Solicitors
3rd Floor
Sovereign House of Lords 
212-224 Shaftesbury Avenue
London WC2H 8PR	

SUMMARY

HOLIDAY PAY

A contractual clause calculating shift pay, including provision for a discount of 4/52 from the calculated total which is then paid proportionally throughout the year, results in an underpayment in respect of holiday pay in breach of Regulation 16 of the Working Time Regulations, because payment throughout the year at the same rate has been secured by reducing the rate otherwise payable. Just as in rolled-up holiday pay cases a court or tribunal must be satisfied that full payment for holiday periods is included in the payment for the rest of the year, so in this case a court or tribunal must be satisfied that there is no reduction in the rate paid throughout the year to fund the payment for the statutory holidays. The 48/52 proportionate reduction (introduced long before the impact of the WTR) did have the latter effect. The underpayment however should only be calculated by reference to the 20 days statutory holiday and not taking into account any extra holidays in fact enjoyed by the Respondents.

  THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1.	This has been the hearing of an appeal by British Airways Plc against the unanimous Judgment of the Employment Tribunal at Watford after a hearing of 4-6 October 2004 in a Judgement handed down on 2 November 2004. 

2.	The issue was between two sample Claimants, being employees, a Mr Noble and Ms Forde, against their employer, British Airways Plc. The factual context is that the Respondent Company was not subject to the Working Time Regulations, so far as holiday pay is concerned, until 1 August 2003 and consequently contractual arrangements which had been worked out over substantial and intricate negotiations over a period of many years between the Respondent and its associated companies and the trade unions representing its employees had not been governed by, nor had to take into account the impact of, those Regulations.  These Claimants, as do others, now seek to establish that since 1 August 2003 the contractual provisions which have been so negotiated are no longer sufficient to comply with the impact of those regulations.

3.	The Claimants were represented below and before us by Mr Andrew Hogarth QC and the Respondents both below and before us by Ms Monica Carss-Frisk QC and Mr David Craig of Counsel.  

4.	The Judgment of the Employment Tribunal is an extremely diffuse one and, in particular, does not enable the uninformed reader to ease himself or herself into the picture with any dexterity, and it may be that this results from the diversity of the issues which were discussed before it. We hope that we may deal more simply, we hope not too simply, with the issues which have been raised.  

5.	By the Working Time Regulations to which we will refer, relevant employees are entitled to 20 days off a year, paid. We have taken for the purposes of argument before us today a figure from the Respondent which is largely right but, we are told, may not apply to every single employee, that employees of the Respondent now have, and have had for some time, including bank holidays and such like, 34 days’ holiday a year. That is, of course, on that basis, 14 days more than the statutory provision requires. 

6.	The contractual arrangement between the parties, leaving aside any question of overtime, with which we are not concerned, provided for the calculation of the remuneration paid to relevant employees as being split between basic pay and shift pay. Not surprisingly, many, if not most, of the Respondent’s employees were involved in shift work and the nature of quantum of that shift work varying throughout the year. It was the subject matter of a number of agreements. For our purposes and, it seems, for the purpose of the Employment Tribunal, only one agreement has been put before us called loosely the “A-Scale Agreement”, but we understand there to have been at least one other agreement in identical terms but the issue can be decided adequately by looking at this particular agreement. Clause 16 is contained in a part of the Agreement which is headed up “The Payment System”. The Agreement reads as follows:

“16.	Payments for each shift pattern will be constructed from those set out in Appendix B as follows:
(a)	the total amount of shift pay due for each shift pattern is calculated by adding up the number of each shift type occurring Monday to Friday in the shift pattern and multiplying by the relevant payments set out in Appendix B;
(b)	to this is added the number of shifts which occur at the weekend multiplied by the relevant payments as set out in Appendix B;
(c)	the total amount of shift pay for the roster pattern is then divided by the number of weeks in that pattern. This weekly sum is then multiplied by 48 and divided by 52 to produce the weekly payment”
(d)	….
Paragraph 17, for completeness, reads as follows:
“17.	Where an employee is absent for all the shifts in one week, no shift pay will be paid. This is irrespective of whether the sum of the individual daily payment is greater or less than the consolidated rate”.
The reference to the consolidated rate appears to be to the figure which is arrived at by virtue of the calculation set out in paragraph 16. 

7.	There was considerable evidence given before the Employment Tribunal as to the circumstances in which these provisions were negotiated and, in particular, evidence with regard to the last sentence of paragraph 16(c), namely referring to the multiplicand of 48 and the divisor of 52. The Tribunal found that they were left not entirely persuaded as to the circumstances of how those figures had fully arisen, but it is clear that the Tribunal was at least satisfied from the evidence of what, in any event, we would have been satisfied of without reference to evidence, namely that 48 in the calculation refers to a number of weeks in a working year and 52 to the total number of weeks in a year. The Tribunal said in relation to this at paragraph 34 of the Judgment:  
“34.	It is quite clear that the 48 in the calculation refers to a number of weeks in a working year. Logic alone might prompt that inference. If the figure of 52 relates to the number of weeks in a year (which the Respondents did not seek to deny) then it must logically be more probable than not that the 48 is also some kind of time scale within the calendar year”.
That, perhaps, is an understandable caution, given that they had so much evidence to look at, but, in the absence of evidence, we are satisfied that it was too cautious and that those conclusions are manifest.  After further consideration of the evidence in paragraph 34 of the Judgment, the Tribunal ended:
“In the annual holiday weeks they were being paid basic pay in respect of the holiday week but together with shift pay in respect of some other week or weeks when they had been at work.  This is clear not only from the history of the figure 48, but from the fact that the contracts make clear that there will be no payment for shifts that are not worked”.
	
8.	This is, of course, not a claim in contract. If it were, there would be no doubt at all that the rate was fully agreed with the participation of those unions who were ably representing their members and, of course, companies who were fully taking into account the interests of their shareholders and their financial position. As we have indicated, before August 2003 no question of the Regulations arose at all. But, as from 1 August 2003, the Working Time Regulations 1998 apply and the relevant provisions are as follows. Regulation 15(1) simply provides:
“15(1)	A worker may take leave to which he is entitled under regulation 13 on such days as he may elect by giving notice to his employer in accordance with paragraph (3), subject to any requirement imposed on him by his employer under paragraph (2)”.
That is simply the starting point to the implementation of the entitlement to annual leave which, by Regulation 13(1), is four weeks’ annual leave in each leave year. The provisions upon which concentration has been directed before us are Regulations 16 and 17. They read in material part as follows:
“16	(1)	A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under Regulation 13, at the rate of a week’s pay in respect of each week of leave.
(2)	Sections 221 to 224 of the 1996 Act shall apply for the purpose of determining the amount of a week’s pay for the purposes of this regulation, subject to the modifications set out in paragraph (3).
(3)	…
(4)	A right to payment under paragraph (1) does not affect any right of a worker to remuneration under his contract (“contractual remuneration”).
(5)	Any contractual remuneration paid to a worker in respect of a period of leave goes towards discharging any liability of the employer to make payments under this regulation in respect of that period; and, conversely, any payment of remuneration under this regulation in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.
17.	Where during any period a worker is entitled to a rest period, rest break or annual leave both under a provision of these Regulations and under a separate provision (including a provision of his contract), he may not exercise the two rights separately, but may, in taking a rest period, break or leave during that period, take advantage of whichever right is, in any particular respect, the more favourable.”

9.	Section 222 of the Employment Rights Act 1996 to which reference is made in Regulation 16(2) provides that the section applies 
“if the employee is required under the contract of employment in force on the calculation date to work during normal working hours on days of the week, or at times of the day, which differ from week to week or over a longer period so that the remuneration payable for or apportionable to any week varies according to the incidence of those days or times” 

and there is then provision for how calculation is to be carried out. There is no doubt in this case that the whole purpose of clause 16 of the A-Scale Agreement was to render it unnecessary to delve into the details for any formula provided by section 222 or, alternatively, to comply with it; and the parties have not done anything other than concentrate, as is right, upon the effect of clause 16, whose purpose was to smooth out over the year differential timings in terms of the amount of shift pay worked by an employee in any one week.

10.	The parties have referred to cases such as J & S Bickley Limited v Washer [1977] ICR 425 on this issue but, at the end of the day, nothing turns on the way in which the annual calculation of salary is carried out. 

11.	The respective arguments, of course, are drawn from the contractual position. The Respondent Company submits that clause 16 in no way offends against Regulation 16 of the Working Time Regulations. No one suggests that it was entered into by way of evasion, or even in anticipation of the Working Time Regulations. It was entered into as a result of face to face and even-handed negotiations, and long before the Working Time Regulations were thought of or their impact considered. 

12.	Ms Carss-Frisk QC submits that the contractual arrangements cannot and should not be interfered with, and that the Regulation has no relevance to them. Plainly, if the provision simply arrived at a method of calculation of the amount due for shift patterns, then there would be no role to play for Regulation 16 but what clearly puts this provision into the spotlight is the content of clause 16(c). Ms Carss-Frisk points to the precise wording of Regulation 16 and she submits that all that is required is for a worker to be paid the same throughout the year and, in particular, paid at such rate i.e. the rate of a week’s pay, in respect of each week of leave. She submits that is exactly what has occurred. The calculation is carried out in accordance with clause 16 in advance, no doubt, of a financial year and is fixed for that year.  The same amount is paid for the weeks worked and the weeks on which the individual is on holiday. There is thus no disincentive from going on holiday, which is part of the purpose of the Working Time Regulations. and no failure to pay a week’s pay in respect of each week of leave, because that is exactly what the employer has done. She submits that clause 16(c) in its entirety is simply a method of calculation of the week’s pay. 

13.	Mr Hogarth, not surprisingly, points to how clause 16(c) is phrased, namely that in order to arrive at the calculation of the week’s pay to be paid throughout the year, there has been a deduction made by reference to the multiplicand of 48 and the divisor of 52. He relies on the rationale behind the Council Directive 93/104/EC and the Working Time Regulations as explained and expanded in what have been called the “rolled up holiday pay” cases, Marshalls Clay v Caulfield [2004] ICR 437 (EAT) and [2004] ICR 1502 (CA) and Smith v Morrisroes [2005] ICR 596. He submits that the underlying aim of the Directive and the Regulations at least includes the fact that there must be genuine and real payment in respect of the holiday period. In the rolled up holiday pay cases, the system is, where it can be carried out lawfully, which, if in accordance with those cases, is certainly permitted, employees are paid an enhanced amount for the period of time when they are working, and then not paid anything when they are on holiday; and it is necessary for the employer to satisfy a Tribunal in such a case that the enhancement of the pay in respect of the weeks worked is sufficient to show that there was, in fact, contractual payment for the weeks on holiday, rolled up into the payment for the rest of the year. 

14.	In this case, there was not rolled up holiday in that sense, because employees were paid for their work the same amount throughout the year, but Mr Hogarth submits that it is necessary for the employer to show that there has not been a reduction in the amount of money paid for the rest of the year, with the result of making the employee pay for his own holiday by reduction of what he gets throughout the year. 

15.	That, Ms Carss-Frisk submits, is not to be found expressly in the terms of the Regulations. She further submits that the basis upon which the Tribunal appears to have found in favour of Mr Hogarth is not supportable. The Tribunal interpreted the terms of Regulation 16(1) of the Working Time Regulations so as to construe the words “in respect of each week of leave” as if it required that there must be allocation of the week’s pay to the holiday period. That was a conclusion by the Tribunal which ante-dated the decision in the Court of Appeal in Marshalls Clay, which upheld the decision in the Employment Appeal Tribunal, and it is quite clear to us that it is not necessary for the pay which is paid over by an employer to be “in respect of each week of leave” in the sense of either being paid in that week or allocated to it, and that has been upheld specifically in the Court of Appeal in the judgment of Laws LJ. 

16.	We are satisfied that all that is necessary is to show that there has in fact been payment for the weeks of holiday, but there must be payment for the weeks of holiday of the amount which the employee is entitled to be paid for the weeks when he is working; and, in our judgement, there is the same requirement in a case such as this for an employer to satisfy the Tribunal that there has been a genuine non-deduction of sums in respect of the holiday, period as there is in a rolled up holiday pay where no money is paid in respect of the holiday, to show that there has been a genuine payment in respect of that holiday period by an increase in the amounts paid for the rest of the year. 

17.	In my judgment in Smith v Morrisroes at paragraph 13, Ms Carss-Frisk points out that I allowed for the possibility of a situation in which, for persuasive reasons, a Tribunal is in the end satisfied that there was payment in respect of the holiday period because otherwise, on the particular facts of a case, given particularly stringent financial circumstances there would have been a reduction of the contractual payment for the rest of the year; but that would require very special circumstances to evidence it. We are not faced here with a situation, as was postulated in Smith v Morrisroes, of the possibility of an employer who, when required to make a payment in respect of holiday pay, paid no additional sum and then sought to justify it by showing that he would otherwise have reduced the weekly rate. We are here faced with a clause which has stood in the same terms since 1975, and which is to be construed in its own terms, and without reference to any particular facts of a given situation.

18.	We turn then to consideration of that clause. We are entirely satisfied that we can construe it without reference to the factual scenario at the time that it was entered into. Neither party has sought to take us to any of the evidence which was before the Tribunal, and which the Tribunal took some time to analyse. The only document that either party has sought to show us is the minute of a meeting in December 1974 running into January 1975 which Ms Carss-Frisk showed us, and which stated as follows:  
“The Employers stated that in averaging the current premia over 52 weeks, account had to be taken of Annual Leave and Bank Holidays. When this was done, the weekly premia were multiplied by the residual figure and divided by 52 and shift pay was then paid over 52 weeks but under no circumstances could shift pay be paid for sickness absence”.
Ms Carss-Frisk points out that in a later paragraph, there is reference to one of the employers represented at the meeting, British Caledonian Airways, stating that: 
“they could have given a long dissertation upon the severe financial situation facing that company but had decided against doing so”. 

19.	We would not have needed the content of that document, or indeed, any other, to be clear as to the purpose of this perfectly lawful agreement when it was made in 1975. Turning to it, it is clear to us that the calculation is of shift pay (see subparagraph (a)) due for each shift pattern Monday to Friday. There is then added to that in (b) the weekend shift provision, which does not re-use the words “pay due” but refers to “relevant payments". It is quite clear that the calculation is based upon a tariff of sums payable in respect of shifts worked. Of course, that is then averaged, not least in subparagraph (c), but it is quite clear to us that it is further affected by the last sentence of clause 16(c) by then being reduced by 48/52. The Tribunal did not find itself able to say that this was by reference to the fact that, on average and taken in general terms, people would have four weeks off in 1975, but it is plain to us that this is exactly the basis of this calculation. 

20.	Ms Carss-Frisk’s submission is that, albeit that might be the case, nevertheless this is a calculation of what is due, and it is then apportioned, having been so calculated, over the whole year; but that might be arguable, but for the fact that it is so obviously a sum which otherwise is calculated by reference to shift pay and shift premiums and shift numbers, and is then reduced by the 48/52 formula. If it had been really, as Ms Carss-Frisk submits, a part of the calculation which has nothing to do, or may have had nothing to do, with annual leave or its taking, then the clause would have been, in our judgement, entirely differently constructed. She reads it as if (a), (b) and (c) were all governed by the words “the total amount of shift pay due for each shift pattern is calculated as follows” when, in fact, it is clear that the total amount of shift pay due for each shift pattern is, in fact, itself part of the calculation from which the eventual 48/52 reduction is then carried out. 

21.	In any event, however this clause, which cannot be construed as if it was a statute, is arrived at, it is in our judgement totally clear that this was arrived at so as to do the parties’ best to enable the position to be reached at which there was, in fact, no material payment being made for shifts during four weeks out of 52 and the calculation having been so rounded was then paid throughout the year. There is, in our judgement, no other conclusion to which the Tribunal could have come but that.

22.	Ms Carss-Frisk indicates that, in its Judgment, the Tribunal reaches the conclusion at paragraph 28 as follows:
“We therefore find as a fact that the meaning of the contract is that the shift pay due to be included in a week’s contract pay is such sum as is arrived at by following the scheme in paragraphs (a) – (c) in the collective Agreements. The final stage of that scheme being do the 48/52 calculation and the resulting figure being the sum due as the shift element in the relevant working week”. 
We have already said that we find it difficult to see how the Tribunal could have come to any other conclusion than that set out above, but these words are in no way a conclusive finding in Ms Carss-Frisk’s favour that that is the end of the matter, not least because the Tribunal itself goes on in the very next sentence at the outset of paragraph 29 to say: 
“But that is not the end of it”. 
We are satisfied that this contractual rate of pay was arrived at by calculating what was otherwise payable in respect of shift work, and then reducing it by applying the formula of 48/52.

23.	Had that been entered into during the operation and effect of the Working Time Regulations i.e. since 1 August 2003, it would, in our judgement, plainly have offended against it. Does the fact that it has been in force for nearly 30 years prior to the imposition of the Working Time Regulations make any difference? Apart from absolving any party from any blame, in our judgement, none whatever. 

24.	Ms Carss-Frisk has reminded us that in the Court of Appeal decision in Marshalls Clay Laws LJ said at paragraph 49:
“….A failure to accord great weight to the collective agreement would, in the absence of special circumstances, betray a bureaucratic centralism wholly unjustified by the legislation”.
This was in the context that it was being argued by the employees in Marshall Clay, for whom Mr Hogarth QC then appeared, that all provisions for rolled up holiday pay were offensive to the Working Time Regulations, and then a whole string of reasons was set out as to why that was so, including some which are described in Smith v Morrisroes as being peculiarly paternalistic. It was in that context that Laws LJ was pointing out that these arrangements, if otherwise lawful, had been entered into by trade unions who well knew how to look after their own clients, such that a rolled up holiday pay provision - in which workers very often benefit by being paid up front at the beginning of the year and, indeed, sometimes working overtime at enhanced rates as a result - could not be said to put them at risk, where they had been so looked after by trade unions. But that, of course, does not lead to a conclusion that every agreement entered into, in this case 30 years before anyone had turned their minds to the Working Time Regulations as a result of collective negotiations, remains immune to the imposition of subsequent regulations.

25.	The consequence of the imposition of the regulations, Mr Hogarth submits, is that regulation 35 of the Working Time Regulations renders void the provision of the last sentence of clause 16(c) i.e. the reduction by 48/52nds. We do not agree. It is plain to us that what is prevented is any system which results in a worker not receiving, in respect of the 20-day statutory period laid down by the Regulations, a full day’s pay coupled with no consequent reduction of the working days in the rest of the year in order to pay for those 20 days. That appears to us to accord exactly with the approach of the Employment Appeal Tribunal, not disapproved in the Court of Appeal in Marshalls Clay, and summarised in Smith v A J Morrisroes [2005] ICR 596 (at 599F):- 
“There must be mutual agreement for genuine payment for holidays representing a true addition to the contractual rate of pay for time worked”.
So, too, in relation to this case, there must be no reduction of payment during the working days in the rest of the year to pay for those 20 days holiday. That is what has occurred here. 

26.	There has also however been a reduction in relation to the other 14 days, in so far as most employees appear to have the extra 14 days which are not protected by Regulations 15 and 16 of the Working Time Regulations. Mr Hogarth sought to submit that the construction of regulation 17 of the Working Time Regulations which we have read was to apply mutatis mutandis to non-statutory holiday periods, the statutory obligations of the employer with regard to the 20 days. That is plainly incorrect, in our judgement. It is quite clear that the Regulations were only imposing the mandatory requirements upon employers in respect of the mandatory period of holiday, and not in respect of any other periods of holiday which might be granted by an employer or agreed with employees. Mr Hogarth sought to argue that the words of Regulation 17, to which we have referred, enabled an employee to choose to take a contractual holiday period and in some way to bolt on to the contractual holiday period the advantages he would have got had he elected for the statutory period. That is not, in the event, a construction with which Mr Hogarth persevered with any conviction or enthusiasm. It is quite plain that Regulation 17 has nothing to do with the right of payment, and effectively simply emphasises that an employee can either take a contractual entitlement with its advantages or the statutory entitlement with its advantages, whichever is the more favourable to him or to her. 

27.	In those circumstances, we are looking at a payment paid over the year on a regular basis throughout the time when the worker was working and when he or she was on holiday, which is too little because it does not make allowance for payment in full for the 20 days, albeit it is also not making a payment of the fullest rate in respect of the 14 days for which the employee with 34 days’ holiday does not have statutory protection. There has therefore been an underpayment so far as the fullness of the statutory period is concerned. 

28.	The operation of the 48/52 formula does, of course, mean that given a five day week, the employee has not been paid, at the full rate, by way of deduction from his annual pay the whole year, in respect of four working weeks (being 20 days) and he has also not been paid in full in respect of an additional 14 days, that is 2.8 weeks. That is an annual underpayment. but it is not one in respect of which the employees can make complaint in respect of the underpayment with regard to any other period than the 20 days protected by statute.

29.	Mr Hogarth submitted that, by virtue of Ms Carss-Frisk’s fall back argument, as she put it, that account must be taken of the facts that we have just related that to take such account offended against the set off provisions in Regulation 16(5), to which we have referred. If there has, for example, been no payment in respect of a period of holiday, but an employer wished to say that he has made overpayment in respect of some other period, he would not be entitled to offset the overpayment in period A against the underpayment in respect of the statutory period B which he was required to pay under regulation 16. 

30.	We are satisfied that that is not the conclusion which we are reaching. We are not here finding that there has been underpayment in respect of any particular period and that, indeed, was not the way in which the case was put by the employees. The way in which the employees have succeeded is by persuading us that there has been underpayment throughout the year; that effectively the worker has had to put his or her hand in pocket throughout the year in order to achieve holiday pay and that, so far as is relevant to us, which only relates to the statutory 20 days, did not occur in respect of all those 34 days because, as we conclude, the employer was entitled to say that he is not in breach of the Regulations in respect of the 14 days, which are not covered by the Regulations. 

31.	There was some argument put forward by Mr Hogarth that we should apply the Apportionment Act 1870, because of the fact that this was a deduction or an underpayment that was running throughout the year. We are, however, satisfied and in the event, again Mr Hogarth appeared to accept this in the course of his final submissions, that the only way in which the application of the Apportionment Act would assist him at all would be if he were right about his argument under 16(5), and we are satisfied he is not. 

32.	What has occurred here is that, by virtue of the 48/52 deduction over the year, there has been a reduced sum paid in respect of, taking 34 days as the mean, 34 days of an employee’s entitlement. As the employer was entitled to take that course in respect of 14 days, there are only 6 days (20 minus 14) in respect of which there has been a breach of the Regulations. Consequently, the Respondent was entitled to apply its discounting formula in respect of 14 days, not 20; there ought to have been another 1.2 weeks (i.e. 6 days) paid at a full rate which was not paid. Accordingly, in so far as the employer applied a 48/52th reduction to all weeks of the year, he was in breach of the Regulation in doing so; and thereby underpaid at the rate of 1.2/52ths in respect of the six days with regard to remuneration throughout the year. It is that amount which has been underpaid by the employers in breach of their obligations under Regulation 16, with regard to an employee with a holiday entitlement of 34 days. If, of course, there are employees with an entitlement of less than 34 days, a lesser proportion would apply, and we leave that to the parties to calculate. Six days have been underpaid in relation to a 34 day employee and that means, as we have indicated in relation to those employees, that the formula was improperly applied as to those employees by applying 48/52ths rather than 49.2/52ths.

33.	We are not thereby re-writing the contract between the parties as, it appears, the Employment Tribunal feared might be the case. If, of course, the parties choose hereafter to renegotiate on an arm’s length basis so as to arrive at that or, indeed, any other similar formula, that will be a matter for them. We are simply saying that in respect of the relevant period which appears, although we are told that the question of limitation and other questions of jurisdiction are still at issue between the parties, prima facie only to start on 1 August 2003, there has been an underpayment, in respect of 34-day holiday employees, of 1.2/52 of their total annual remuneration, because that sum has been unlawfully subtracted by the employer from their entirety of their remuneration; and thus although they in fact received, on the face of it, the same sum throughout the year, that was only done by averaging down the sum that they should have received while working in order to receive the same sum throughout the year, and in so far as that was done by using the formula 48/52 as from 1 August 2003, that offended against the Regulations.

34.	In those circumstances, the appeal of the Respondents is allowed so far as remedy is concerned to that extent, but is dismissed so far as the main issue of liability is concerned. There was a ‘pleading point’ taken by the Respondents, with which we have not expressly dealt in this judgment, but we are satisfied that the Claimants’ case was fully open to them by reference to their Further and Better Particulars.