Appeal No. UKEAT/0459/06/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 November 2006

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MS J L P DRAKE CBE
MR D G SMITH

MS M GRIFFIN	APPELLANT

CITY & ISLINGTON COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS M GRIFFIN
(The Appellant in Person)	
For the Respondent	MS L McLYNN      
(Solicitor)
Messrs Bates Wells & Braithwaite
Solicitors
2-6 Cannon Street
LONDON
EC4M 6YH	

SUMMARY

Practice and Procedure – Review

Employers conceded liability for holiday pay under the Working Time Regulations at the Employment Tribunal. They did so on the basis that the decision of the EAT in List Design Group v Douglas [2002] ICR 636 gave the employee an entitlement with respect to three years’ holiday pay. A few days after the Tribunal decision, the Court of Appeal in Commissioner for Inland Revenue v Ainsworth & Anor.  [2005] IRLR 465 held that the approach in List Design was wrong. The effect was to limit the period in respect of which unpaid holiday pay under the Regulations could be claimed. The employers immediately sought a review of the Tribunal’s decision on the grounds that it was in the interests of justice to review it. The Tribunal acceded to that application and reduced the compensation accordingly. It was not suggested by the employee that they should stay the matter pending the decision of the House of Lords. The employee also sought a review on the grounds that the Tribunal had not properly analysed her claims in a particular way. The Tribunal rejected this application. The employee appealed on the grounds that: the Tribunal should not have allowed the employer to withdraw from their concession; that in any event if minded to do so it should have stayed the proceedings pending the decision of the House of Lords in Ainsworth; and that it ought to have acceded to her application for a review. EAT dismissed the appeals and held that no error of law had been shown in the Tribunal’s decision.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is an appeal by Ms Griffin (the Appellant) who complains that the Employment Tribunal erred in law in refusing her application for a review and in acceding to the Respondent’s application for review and, on review, altering its initial decision so as to lower the compensation which had been awarded to her in respect of holiday pay under the Working Time Regulations. 

2.	Initially, her claim was considered to have no reasonable prospect of success on a sift, but her oral application under Rule 3(10) was allowed by Bean J and, accordingly, the case has come through for a full hearing.  At the Rule 3(10) hearing she was represented pro bono by Mr Sam Neaman, an ELAAS representative, who helpfully redrafted her original grounds of appeal and identified three grounds. She has today represented herself and the Respondent employer has been represented by Ms McLynn of counsel.

The background

3.	The Appellant started working for the Respondent College in January 2002. The College employed three difference types of tutor: first there were permanent lecturers who could be full or part-time; second, variable-hours lecturers, who are permanent members of staff but are contracted only to undertake certain specific tasks, usually teaching; and third, visiting tutors, who are lecturers engaged to teach specific courses on fixed-term contracts. These courses are those which the College may or may not run, depending on the demand from new students. Therefore, there needs to be flexibility on the teaching arrangements. 

4.	The Appellant was primarily employed as a visiting tutor, teaching ICT and basic skills courses but she also undertook some variable-hours teaching. The Tribunal found that on each occasion that she entered into a fresh contract she was provided with a statement of terms and conditions, although she sometimes refused to sign these on the grounds that they did not properly reflect the terms of her contract. 

5.	Her complaints were summarised by the Employment Tribunal in paragraph 2 of its initial decision as follows: 
“(1) The failure to provide an adequate statement of terms and particulars of employment in accordance with the entitlement under section 1 of the Employment Rights Act 1996.
(2) Unauthorised deduction of wages contrary to section 13 of the Employment Rights Act 1996 for a period from August 2004.
(3) A failure to provide guarantee payments under section 28 of the Employment Rights Act 1996.
(4) Less favourable treatment as either a part time worker under the Part Time Workers (Less Favourable Treatment) Regulations 2000 and/or as a fixed term employee under the Fixed Term Employees (Less Favourable Treatment) Regulations 2002.
(5) Non payment of holiday pay in accordance with the entitlement under the Working Time Regulations 1998.”

6.	The complaint concerning less favourable treatment on the grounds of  being either a fixed-term or part-time worker alleged that the treatment had been less favourable in relation to nine different matters, which were set out at paragraph 3 of the Tribunal’s first decision. There is no need to set those out.  Suffice it to say that they included general less favourable treatment in relation to holiday entitlement. 

7.	The Tribunal expressly rejected the claims in relation to grounds one, three and four. They upheld a claim that there had been an unauthorised deduction of wages, contrary to Section 13 of the Employment Rights Act. The College in fact admitted that it had failed to pay Ms Griffin wages for work she had done and accepted that they were in principle obliged to pay those wages. Their reason for not doing so was that she had not completed all the relevant forms entitling her to payment. That was rejected by the Tribunal as a legitimate reason for refusing to make the payment so that claim succeeded. 

8.	The Claimant also succeeded on her claim for the non-payment of holiday pay under the Working Time Regulations. The employers purported to give holiday pay by way of rolled up holiday pay but they conceded before the Tribunal that that was unlawful and that they were obliged to make separate payments for her in respect of her holiday pay. The amount which they conceded they were obliged to give was identified by reference to the three specific periods: January to August 2002; September 2002 to August 2003; and September 2003 to August 2004. Their understanding was that the Appellant would in fact be able to claim the whole of the holiday pay to which she was entitled under the Working Time Regulations and which had not been paid to her as an unlawful deduction from pay contrary to s.23 of the Employment Rights Act 1996. That was in line with the authority of this Tribunal in List Design Group v Douglas [2003] IRLR 14. The Tribunal decision was sent to the parties and entered on the register on 18 April 2005. 

9.	Very shortly thereafter, on 22 April 2005, just four days after the Tribunal decision had been entered on the register, the Court of Appeal gave its decision in Commissioner for Inland Revenue v Ainsworth & Anor.  [2005] IRLR 465. In that case Maurice Kay L J, with whose Judgment Laws and Kennedy L.JJ agreed, held that claims under the Working Time Regulations could not be run in the alternative as deductions of wages under s.23 of the Employment Rights Act. List Design was not good law. The significance of this, as the Court of Appeal noted, was this.   Section 23(3) of the 1996 Act provides that where there is a series of deductions or payments then a claim can be made in respect of all those deductions provided it is made within three months of the last deduction of the series. By contrast under the Working Time Regulations the series exception does not apply. The claim has to be made within three months of the deduction. Accordingly the scope of the deductions which might fall under the unlawful deductions claim is much broader than might apply under the Working Time Regulations.

10.	Following this decision the College immediately sought a review on 1 May. This was within the 14 day time limit for making such applications.  The basis of the application was that the interests of justice justified the review. Essentially it was contended that the basis on which the original concession had been made was that List Design was good law and that it would be unjust to hold the employers to that false view of their legal obligations. The Tribunal considered this application at a hearing on 13 December (with judgment entered on the register on 19 January 2006). It acceded to this application for review and, in accordance with the concession  by the employer as to its obligations under the Ainsworth approach, limited the sum to be paid to the Appellant to the last of the three  pay periods only. 

11.	At that review hearing the Tribunal also to consider an application for review which had been brought by the Appellant. She had initially made her application on 23 April and she had clarified it further in a letter of 4 May 2005. In part it seems to us that the May letter is a response to the application which by then had been lodged by the College. The ground of her claim, it has to be said, is not entirely clear but it appeared to have been principally on the basis that she remained entitled to holiday pay on the same basis as that given to the permanent employees but pro rata to take account of her fewer hours. And there is a suggestion, although it is not altogether spelt out, that she was entitled to some contractual entitlement. The Tribunal considered but rejected this application. They did so in the following terms: 
“The Tribunal were not satisfied that there was any new evidence which was not before the Tribunal at the time which they originally heard the claim nor were they satisfied that the interests of justice required a review. The Tribunal were satisfied that the matters had been fully aired on the previous occasion and that the application for review made by the Claimant was therefore unsuccessful. It appeared to the Tribunal that the Claimant’s dissatisfaction with the Tribunal’s decision stems largely from her belief that she was in some way entitled to holiday pay over and above her Working Time Regulations entitlement however the Tribunal’s decision on the previous occasion had been very clear that her holiday entitlement fell under those regulations even though she was an employee of the Respondents. There was however no evidence of any additional contractual entitlement nor was there any evidence of less favourable treatment in relation to differentials of holiday. The Tribunal therefore declined to review their decision on the Claimant’s request.”

The grounds of appeal

12.	The Appellant now appeals on three grounds. First she submits that the Tribunal ought to have allowed her application for review and it is to that issue that she has principally devoted her arguments this morning. Second she says the Tribunal ought not to have permitted a review on the amount paid by the employers given that they had conceded that sum before the Employment Tribunal. As a related ground she contends that in any event the Tribunal ought not to have acceded to the basis of that application, but ought to have stayed its final determination until the decision in Ainsworth had been clarified following its appeal to the House of Lords. We will deal with these grounds in turn. 

13.	As to the refusal by the Tribunal to grant her application, we confess that it remains unclear precisely how it is being put. We say that without any disrespect to Ms Griffin who plainly feels strongly aggrieved at the fact that she is not entitled to have as much holiday pay as she thinks she ought to receive, given the significantly greater sums given to the permanent staff. 

14.	The amended ground of appeal says that she had a claim for holiday pay under the contract which was simply not determined by the Employment Tribunal at all. That is not, however, how she has put the case to us this morning. She says that she was an employee, that the Tribunal did not recognise that fact, that she was directed when she had to take holidays and in those circumstances she should have been entitled to the same holiday rights as other employees. She was relying on the Employment Rights Act (it is not clear to us precisely which aspects), although we note that her reliance on that Act is not consistent with a pure contractual claim. It seemed to us that the real basis of her case was her contention that she was being treated less favourably than full time employees and that the Tribunal were wrong in finding otherwise.

15.	Looking at the moment at the pure contractual claim, it is right to say that no such claim was considered by the Tribunal, but that is for the very good reason that there was no contract claim ever identified for the Tribunal to determine. The Tribunal, as we have indicated, set out the five grounds on which she was making claims before it. They did not include any pure contractual claim as such. Moreover, the premise behind the claims for less favourable treatment and for holiday pay under the Working Time Regulations was that she had been denied these rights under her contract; that is why she was claiming that she had been receiving less favourable treatment. In any event, the contractual term itself is clear, as she accepted before us this morning. It states in terms:
“You are entitled to leave under this contract and leave must be taken at half term or during the College holiday period. The remuneration you receive on an hourly basis includes an element of holiday pay and you are not entitled to receive any further holiday pay.”

16.	The employers were not entitled to roll up holiday pay in that way and therefore were obliged to give the pay under the Working Time Regulations; that much was conceded by them. But in terms of her contractual rights, she had no further rights. It may be that it was misleading of the Tribunal to say that they had dealt with this matter, rather than a pure contract claim had never been advanced before them. But in fairness to the Tribunal they may have been treating the less favourable treatment as the contractual claim because that is how the Appellant appears to have been putting it. In any event, the Tribunal was in our view plainly right to reject this application for review; it had absolutely no prospect of success. It had not been run before; it was not consistent with the claims which had been run; and, as the Tribunal pointed out, there was no fresh material to suggest that the original analysis was wrong or made on a false premise. 

17.	If the case is now put on the grounds that the Tribunal should have reopened the case on less favourable treatment then it seems to us that is also doomed to fail, essentially for the reasons given by the Tribunal. As they say, the matter had been fully aired on the previous occasion. There was no fresh evidence or anything of that kind to suggest that there was any justification for the Tribunal to look at the matter afresh. If there was dissatisfaction with the decision then the proper route was an appeal. (Indeed, apparently there was an appeal but it was lodged out of time and is not now being pursued). 

18.	We turn to the other grounds of appeal. It is submitted the Tribunal ought not to have reopened the decision as to the amount of compensation because it was based upon a concession. However, it is clear that the Tribunal has a wide discretion as to the circumstances in which it will reopen a decision in the interests of justice. That is a broad concept and the Employment Appeal Tribunal has recently held that a review should be permitted wherever it is necessary to deal with the case justly: see Williams v Ferrosan Ltd [2004] IRLR 607. So, for example, where the decision of a Tribunal has been undermined by an event occurring very shortly after the decision, that can provide a justification for review: see Yorkshire Engineering v Burnham [1974] ICR 77, and; Ladup Ltd v Barnes [1982] ICR 107. It all depends on the circumstances. We see no reason why in principle the same should not apply to changes in the law- or more accurately, a new understanding as to what the law provides- as it does where factual assumptions are proved to be false.  
19.	In Williams v Ferrosan the parties and the Tribunal all acted on the false premise that the unfair dismissal compensation awarded in that case was not taxable in the hands of the employee; in fact it was. The Employment Tribunal refused to review the decision but the Employment Appeal Tribunal (Hooper J. presiding) allowed the appeal. Hooper J. observed that the introduction of the obligation for tribunals to give effect to the overriding objective, which requires tribunals to deal with cases justly, meant that it was wrong to regard the review procedure as applying only in exceptional circumstances.

20.	 In this case the Tribunal took the view that it would be unjust to the employers to bind them to the decision of the Employment Appeal Tribunal in the List Design case, since it had been overturned almost immediately following the Tribunal decision by the Court of Appeal in Ainsworth. The basis on which the concession had been made, and reasonably and sensibly made in the light of List Design, had now been undermined almost immediately after the decision had been delivered.

21.	 We are confirmed in this view by considering the position if there had been an appeal to this Tribunal. It is well established that it will only be in exceptional circumstances that concessions which are made below can be reopened. But that they can be reopened in an appropriate case is plainly established: see Jones v Governing Body of Burdett Coutts School [1999] ICR 38.  There is a particular reluctance to allow them to be reopened if that opens up fresh issues of fact, as Jones itself makes  clear.  But that is not in the position in this case. The facts had all been determined and there was no need for any further evidence in order for the matter to be dealt with properly by the Tribunal.  Moreover, the Court of Appeal has recognised that in an appropriate case it has jurisdiction to allow a decision at first instance to be corrected where there had been a subsequent change in the law: Wilson v Liverpool Corporation [1971] 1WLR 302.

22.	In Williams v Ferrosan one of the reasons why the court considered that a review was appropriate was that the concession could have properly been the subject of an appeal to this Tribunal. Hooper J pointed out that if the matter could be considered on appeal then there was much to be said for it being determined by the Employment Tribunal on review, which could deal with the matter expeditiously and probably more cheaply. That observation, with which we respectfully agree, seems to us to be applicable here. That is not to say that this Tribunal hearing an appeal would necessarily have reached the same result as the Employment Tribunal did on review. There is no single right answer to the question what the interests of justice require in these circumstances.   But in our view the fact that an appeal could in principle succeed on this ground points to the fact that the Tribunal were entitled to review their decision and reach the conclusion they did. It is very important to emphasise that the application for review in this case was still within the timescale for making that application and also within which an appeal could have been mounted to this Tribunal.  In general, finality will preclude the interests of justice allowing points to be reopened.  Accordingly we see no error of law in the approach of the Tribunal as far as this matter is concerned. 

23.	Finally we turn to the issue of stay. That, is seems to us, is very much a matter for the Tribunal. The Appellant did not at that time urge upon the Tribunal that it should stay its determination in respect of the review pending the decision of the House of Lords. It seems to us, therefore, that if this ground were to succeed it would have to be on the basis that the Tribunal was under an obligation of its own motion to take the point and, having taken it, to determine that a stay was the only appropriate order to make in the circumstances of the case. 

24.	We think that is an impossible argument to sustain. The Tribunal was not obliged to take this point of its own motion and nor, it seems to us, would it have been obliged to stay its order in any event.  Even if it had considered the matter, it would have been entitled to take the view that the delays may be too long to justify a further stay. In fact as we now know there has been a reference by the House of Lords in Ainsworth to the European Court of Justice and it may yet be a number of years before there is any finality as far as that particular decision is concerned. 

25.	It follows therefore that we see no error law in the approach of the Tribunal in relation to any of these grounds and in the circumstances the appeal is dismissed.