Appeal No.	 EAT/717/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 November 2000

Before
THE HONOURABLE MR JUSTICE CHARLES
MRS R CHAPMAN
MS B SWITZER

MR S TEMPRO	APPELLANT

MORRITTS RESTAURANT LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	MR JUSTICE CHARLES:

1	This appeal comes before us this morning by way of preliminary hearing pursuant to our Practice Direction and therefore our task is to consider whether it raises any reasonably arguable points of law.

2	The parties are a Mr S Tempro who is the Appellant before us and was the Applicant before the Employment Tribunal.  The Respondents are described as Morritt’s Restaurant.  

3	The appeal is by Mr Tempro against part of the decision of an Employment Tribunal sitting at Leicester on 20 April 2000, the Extended Reasons for which were sent to the parties on 8 May 2000.

4	The Employment Tribunal decided that the Appellant had not been unfairly dismissed but that the Respondents had made an unlawful deduction from his wages in the sum of £103.50.  The appeal is against the quantification of the finding as to the deduction from wages.  The claim for deduction from wages is described in paragraph 1 of the Extended Reasons in the following terms:

“He [the Applicant] also claimed as an unlawful deduction from his wages 11 days unpaid holiday and that for the balance of 43½ days holiday he had not been paid at the correct rate.”

5	The Employment Tribunal heard evidence from the Applicant and from Mrs Morritt, who was one of the Directors of the Respondent company.  Additionally, the Tribunal had before them some records of the Respondent company relating to holiday entitlement.  

6	As appears from the Extended Reasons the Employment Tribunal accepted Mrs Morritt’s calculations of the holiday pay which they say was taken from the records, rather than the evidence of the Applicant which they record they found not to be very clear:  see paragraph 1 of the Extended Reasons.  Apart from that, the Employment Tribunal record that they largely accepted the Applicant’s evidence:  see again paragraph 1 of the Extended Reasons.

7	The claim for holiday pay is dealt with primarily in paragraphs 8, 9, 12, 13 and 14 of the Extended Reasons.  They are as follows:

“8.  The applicant has said that he should have been paid for his holiday period at the National Minimum Wage of £3.60 an hour, which he calculated was more than the respondent had paid him.  The applicant in addition alleged that he was entitled to an additional 11 days’ holiday, which the respondent had not given to him.  This is because he said that from the holiday from April 1998 to March 1999 he had not taken 22 days’ holiday and he was allowed to carry those 22 days forward.  In the early part of April 1999 he took 11 days’ holiday which counted against his previous years entitlement leaving him still with an additional 11 days carried forward.  We accept the calculation made by Mrs Morritt based on the respondent’s details of attendance, which show that in fact the applicant was allowed to carry forward 11 days from the previous year and took those 11 days in April 1999, for which he was paid.  He did not have any further holiday in the year commencing April 1999 until his employment ended.
9.  On recalculating the wages the company has accepted that there were additional days worked by the applicant, which resulted in sums, that under the contract would have permitted him to have further holiday.  At the end of the applicant’s employment the respondent paid him 43½ days’ holiday, but accepts that by miscalculation a further 3 days is due under the contract.
12.  We have accepted the respondent’s calculation of the applicant’s holiday entitlement under his contract.  That is that there were 3 days outstanding.  Under the applicant’s employment terms that was to be paid at his basic pay at a £190 per week and did not include either his monthly bonus or the performance bonus.  As he works a 5½ day week, for three days that would be a pay of £34.50, of which for the 3 days amounts to £103.50.  We order the respondent to pay that sum to him as an unlawful deduction from his wages.
13.  We have considered the applicant’s suggestions that the respondent was in breach of the National Minimum Wage Act and the Working Time Regulations.  It seems to us that under the National Minimum Wage Act the applicant is not able to claim that the 60 hours that he would have worked had he been working would be worked during a holiday period.  Under the Working Time Regulations 1998, by regulation 17 the applicant is only entitled either to his contractual entitlement or his statutory entitlement, whichever is the more favourable.  He is not entitled to take his contractual days at the rate payable under the Working Time Regulations.  We are satisfied that the applicant was paid at the ending of his employment for 43½ days’ holiday at his contractual rate of pay.  Under the Working Time Regulations during the holiday year from April 1999 till his employment ended, he took 11 days’ holiday at the beginning at that time.  That would take account for all his holiday entitlement under the regulations for that period.
14.  It is clear also that any claim which the applicant might have under the Working Time Regulations or National Minimum Wage Act only relates to the 11 days’ holiday he had at the beginning of April 1999.  His application to this Tribunal was not received until 10 February 2000, which is well outside the three month time limit for bringing such a claim.  The applicant has not tried to suggest that it was not reasonably practicable for him to have brought his claim at an earlier stage.  We are satisfied, therefore, that the applicant does not have any claims in respect of the holiday under either of these statutory provisions.  The more beneficial provision from his point of view is his contractual entitlement, which is for the 3 days’ holiday pay that we have ordered.”

8	Mr Tempro’s appeal relates essentially, as we understand it, to the finding that he was not entitled to a further 11 days.  During his helpful oral submissions this morning, he has pointed out that he had not seen a number of the records until very shortly before the Employment Tribunal hearing and has said that he did not really follow what was going on in parts of that hearing.  Also in his Notice of Appeal, he says, that Mrs Morritt did not tell the Employment Tribunal the truth.  He has explained to us the way in which a part-time worker, a Mrs Lakin, worked for him on his half day and, as she built up holiday entitlement in that respect, he then had to continue to work a full week rather than half days because Mrs Lakin was not there to work for him on Thursday afternoon.  He has also taken us to records showing Sunday working.  He says that when the information relating to Mrs Lakin, the Sunday working and the two additional days shown in that part of the records are properly taken into account he was entitled, as he alleges, to the 11 days’ holiday pay.

9	As I indicated at the beginning of this judgment our jurisdiction is limited to correcting errors of law.

10 	We have looked at the documents produced, compared them to the Extended Reasons and we have been unable to identify any glaring error shown from the documents themselves or any glaring inconsistency between the Extended Reasons and the documents.  It follows that, in our judgment, the matters about which Mr Tempro complains are pure issues of fact.  

11	It is clear to us that he feels deeply about this case and that he was entitled to what he says he was entitled. No fact-finding Tribunal is immune from making mistakes of fact.  If the Employment Tribunal in this case made such a mistake it is not something that we have the jurisdiction to correct.  The issues which Mr Tempro seeks to raise are, in our judgment, exclusively issues of fact and those are matters for the Employment Tribunal.

12	We have additionally considered whether any point of unfairness or procedural impropriety is raised, having regard to what Mr Tempro told us concerning the conduct of the hearing before the Employment Tribunal and the production of documents.  In our judgment those points do not give rise to any reasonably arguable point that in carrying out their fact-finding exercise the Employment Tribunal erred in law.

12	It follows therefore that we must dismiss this appeal.