![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hall v London Lions Basketball Club (UK) Ltd (CONTRACT OF EMPLOYMENT : WORKING TIME REGULATIONS) [2020] UKEAT 0273_19_0402 (4 February 2020) URL: http://www.bailii.org/uk/cases/UKEAT/2020/0273_19_0402.html Cite as: [2020] UKEAT 0273_19_0402, [2020] UKEAT 273_19_402 |
[New search] [Printable PDF version] [Help]
At the Tribunal | |
Before
GAVIN MANSFIELD QC
DEPUTY JUDGE OF THE HIGH COURT
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant |
Mr Daniel Isenberg (of Counsel) Instructed By Linklaters LLP One Silk Street London EC2Y 8HQ |
For the Respondent |
No appearance or representation by or on behalf of the Respondent |
SUMMARY
CONTRACT OF EMPLOYMENT
WORKING TIME REGULATIONS
1. Wrongful Dismissal. The ET found that the Appellant (Claimant below) had been wrongfully dismissed. He had resigned with immediate effect accepting the Respondent's repudiatory breach in failing to pay a contractual sum due. The ET erred in calculating damages for wrongful dismissal. It limited the Appellant's damages to 14 days, relying on an express term that would have permitted the Appellant to terminate on 14 days' notice, rather than considering when the Respondent could lawfully have terminated the contract. Appeal allowed; remitted to ET for assessment of damages.
2. Holiday pay. The ET found that the Appellant was entitled to a payment in respect of arrears of holiday pay on termination. It erred in making a pro rata deduction to the holiday pay, to reflect the Appellant's part-times hours. Harpur Trust v Brazel [2019] IRLR 1012 applied. Appeal allowed, order in correct sum substituted.
GAVIN MANSFIELD QC DEPUTY JUDGE OF THE HIGH COURT
Introduction
The ET Judgment and the scope of the appeal
Ground 1
"45. The Respondent's failure to pay the Claimant his contractual wages and benefits also amounted to a constructive wrongful dismissal. The Respondent's failure to pay the Claimant his wages and benefits triggered his resignation after the Claimant lodged a grievance by letter dates 12 February 2018. The Respondents failure to deal with that grievance and/or rectify its breach by paying wages and benefits lawfully due and owing pursuant to the contract amounted to a repudiatory breach of contract which the Claimant acted upon two days later (14 February) by resigning and thereby not accepting the breach.
46. A failure to pay wages is a fundamental breach of contract entitling the Claimant to resign which the Claimant did. As a consequence, the Respondent was not able to make a counterclaim for breach of contract as it was in breach of contract itself. At the point of the Claimant's resignation due to a fundamental breach of contract the parties no longer owed any contractual duties to each other. As such, after 14 February 2018 the Claimant could not have been in breach of contract by taking up employment with another company. Accordingly, the Respondent's counterclaim against the Claimant was dismissed."
"However the Tribunal did not accept this argument. The contract of employment contained in clause 24, which confirmed that the Claimant had the right to terminate the contract of employment on the giving of 14 days notice in respect of a serious breach of contract by the Respondent"
"If a club is guilty of serious or persistent breach of the terms and conditions of the contract, the player may terminate this agreement by serving a notice of termination to take effect after 14 days on the club".
Ground 1: Disposal
"the only function of the Employment Appeal Tribunal was to see that the decision of employment tribunal were lawfully made, that if the appeal tribunal detected a legal error by an employment tribunal, it had to remit the matter, unless either it concluded that the error could have affected the result and was therefore immaterial, or though the results would have been different without the error, the appeal tribunal was able to conclude what the result would have been, and, in either case, the result had to flow from findings made by the employment tribunal, supplemented (if at all) only by undisputed or indisputable facts; that the appeal tribunal was not to make any factual assessment for itself, or any judgment of its own as to the merits; that in any case where, once the employment tribunal's error of law was corrected, more than one outcome was possible, it had to be left to the tribunal to decide what the outcome should be, however well placed the appeal tribunal might be to take the decision itself"
Ground 2
"55. It was accepted that the Claimant did not take holiday during this period of time and the Tribunal found that the Claimant worked an average of twenty hours per week. The Claimant's holiday entitlement should be pro-rated to reflect his twenty hours per weeks (twenty hours divide by forty hours) and the entitlement claimed by the Claimant in his Schedule of Los should be divided by tow. Accordingly, the Claimant is awarded £581.54 in respect of holiday entitlement which is to be uplifted by 15% (£87.23) and the Claimant is awarded a total payment of £668.77 in respect of unpaid holiday entitlement at the termination of his Employment."
"On any natural construction the Working Time Regulations make no provision for pro-rating. They simply require the straightforward exercise of identifying a week's pay in accordance with the provisions of sections 221-224 of the 1996 Act and multiplying that figure by 5.6"….
"He also referred to the judgment of the Inner House, given by Lord Eassie, in Russell v Transocean International Resources Ltd [2010] CSIH 82, [2011] IRLR 24. That case concerned offshore oil-rig workers who worked a pattern under which they had two weeks on the platform and two weeks off, so that they worked a total of 26 weeks per year. The issue was whether they were entitled to take their annual leave out of the weeks when they would otherwise be at work. It was held that they were not, and that decision was upheld by the Supreme Court ([2011] UKSC 57, [2012] ICR 185). That is not the issue before us – the Claimant accepts that her leave is taken in the school holidays – but Lord Eassie had occasion to consider the position of workers who only worked for part of a week. He said, at paras. 34-35 ([2022] IRLR 24 at 29-30):
'34. … [W]e see Article 7 of the WTD as requiring that there be provided to the worker within the year (which need not be a calendar year), at least four remunerated weeks of the weekly cycle in which he is free from work commitments.
35. On that reading of the WTD, those particular days during the employee's seven day working week on which the employee does not actually work are not generally reckonable towards annual leave. The point is perhaps best illustrated by the example, canvassed in argument, of the part time worker who may work three days per week - say Monday to Wednesday inclusive. Were the employer entitled to treat Thursdays as being weekly rest and Fridays and the weekend as annual leave, that would have the effect of requiring that part time worker to attend for work on each of the 52 weeks of the year. That, in our view, would infringe what is required of Member States by Article 7 of the WTD. What that article requires is that, within the leave year, there are at least four weekly cycles in which the part time worker is not required to turn up and put in his part time hours. We would add that while the part time worker thus obtains four weeks in which he does not require to attend for work, the pro rata temporis principle still applies, because in terms of days of annual leave the part time worker receives the appropriate proportion of that which would be received by the full time worker within that weekly cycle [emphasis supplied]."
"I start by clearing some ground. Although the pro rata principle for which Mr Glyn contends is general in its application, it is important to appreciate that in this case we are concerned specifically with the position of part-year workers. We are not concerned with its application to workers who work part-time in the other sense noted at para. [2] (2) above, namely those who work throughout the year but for only part of the week. The position as regards entitlement to leave of such workers is, if I may say so, correctly analysed by Lord Eassie in the final sentence of the passage which I have quoted from his judgment in Russell. They are entitled under both the WTD and the WTR (ignoring, in the interest of simplicity, regulation 13A) to four weeks' annual leave. They are accorded that entitlement by being given four weeks in which they are not required to work at all, though of course all that they are actually relieved from having to work is the particular days in those weeks that they would have worked otherwise: in his example that is three days. In that sense their holiday entitlement amounts to only (in the example) twelve days, and the WTR do indeed, as he says, apply the pro rata principle. Lord Eassie could also have added, though it was not germane to the particular point that he was making, that the effect of regulation 16 was that the holiday pay to which such workers would be entitled for those weeks would be based on an average taken over twelve weeks in which they had likewise been working part-time, so that it would only represent three days' earnings and in that respect also would respect the pro rata principle. But that is not the issue here. In the 5.6 weeks of the school holidays that notionally constitute the Claimant's annual leave she is likewise only being relieved from working the number of hours for which she would have given lessons, and her holiday pay also will be based only on her earnings from such lessons. What we are concerned with is whether she should receive less than her entitlement, so calculated, in order to reflect the fact that she does not work throughout the year".
Ground 2 Disposal