Appeal No.	 EAT/603/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 October 2000

Before
MR COMMISSIONER HOWELL QC
MS N AMIN
PROFESSOR P D WICKENS OBE

MR D GARRETT	APPELLANT

MR B GOODBODY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR MARC JONES
(of Counsel)
Appearing under the
Employment Law 
Appeal Advice Service
	
For the Respondent		

MR COMMISSIONER HOWELL QC

1	Well Mr Garrett, although the amount involved in this particular case is very small, we are satisfied that there is a sufficiently arguable point raised as the matter has been put to us this morning, to warrant us directing that this case should go forward to a full hearing before the Employment Appeal Tribunal . 

2	There must be an amended Notice of Appeal, Mr Jones I hope you will be able to assist with that, raising in specific terms the issue of what the appropriate method of calculating should be in a case, such as we understand from Mr Garrett this was, where a second week of de facto holiday is taken by an employee during the course of a leave year, in circumstances where it has not been agreed by his employer that he should take that second week of holiday when he does, and it does not represent a week of accrued holiday entitlement at the date he takes it.  

3	In those circumstances, when the contract of employment subsequently comes to an end, and the calculation of what would normally be an accrued holiday pay entitlement as at the date of the ending of the contract comes to be done, it seems to us that there is a point to be considered whether the calculation date prescribed by Regulation 16(3)(c) of the Working Time Regulations 1998 SI 1833  does or does not require the calculation to be done as at the date when the week in question was actually taken as holiday, albeit unauthorised. That is the issue on which we direct a full hearing of this appeal before the Employment Appeal Tribunal. 

4	Mr Jones if you could possibly assist further in this case to this extent by drafting for Mr Garrett an Amended Notice of Appeal in the terms that I have just indicated which I hope will be on the transcript, that would be extremely helpful to the Tribunal which eventually considers this case.

5	We will direct that the transcript of our remarks this morning should be supplied to you as soon as possible and you should then have 14 days after that to lodge an Amended Notice of Appeal.  (Direct to you, Mr Jones, even though you are acting under the ELAAS scheme, would be probably the best way of doing it.)  On that footing we will direct that this appeal should go forward to a full hearing of the Employment Appeal Tribunal, listing Category B because we are told that this a point that will affect other cases as well, even though the amount is very small.  Estimated length of hearing is half a day;  if that assessment is too short when it comes to preparation for the actual hearing then an amended estimate can be put in.  We will direct that the Chairman’s Notes of the evidence given to the Tribunal on the two occasions on which this was considered by them should be requested. In particular we are concerned about the factual evidence given as to what was or was not agreed about this second week of holiday taken by the Applicant for the week ending 6 August 1999. We are particularly concerned that the full Appeal Tribunal should see the actual evidence about that before the Tribunal on the first occasion, given that they record in paragraph 4 of the extended reasons of 16 February 2000 that the facts were not in dispute: and that the Applicant had taken two weeks holiday from 26 July to 6 August 1999 for which he had been paid, there being no record of any dispute as to whether the second week was viewed by the employer as unauthorised absence at that stage.

[Additional direction to be added to the Order, that skeleton arguments are to be exchanged between the parties and lodged with the Employment Appeal Tribunal not later than 14 days before the full hearing of the Appeal]