Appeal No.	 EAT/1324/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 March 2001

Before
MR RECORDER LANGSTAFF QC
MS N AMIN
MISS D WHITTINGHAM

FRIENDLY COMPUTER COMPANY	APPELLANT

1) MR J B STEEDMAN    2) MR P T LANCE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	NICHOLAS FRIMOND
Representative
Prospect House
Bethel Lane
Farnham
Surrey GU9 0QB	

MR RECORDER LANGSTAFF QC

1	This case comes before us by way of Preliminary Hearing from a decision of the Employment Tribunal sitting at London South which was promulgated on 29 September 2000.  

2	The question at issue was a jurisdictional one.  Had applications by the workers, Mr Steedman and Mr Lance, been submitted within the period of 3 months prescribed by Regulation 30(2)(a) of The Working Time Regulations 1998?

3	The contracts of Mr Steedman and Mr Lance were both terminated in December 1999, that of Mr Steedman on 30 December, Mr Lance on 24 December.  They submitted originating applications, Mr Steedman on 30 March 2000, Mr Lance on 29 March 2000.  On 14 March they had submitted an invoice to the Appellant in respect of holiday pay - both pay which they contended they should have been paid whilst on holiday, and pay in respect of untaken holiday leave.

4	The Employment Tribunal determined that the complaints were within time because upon the interpretation adopted of Regulation 30(2)(a) they concluded that the payment should have been made upon presentation of the invoice.  It was agreed before them by Mr Frimond for the Appellants that the money was not due until an invoice was presented.  A second ground for deciding that the application was within time was that upon an interpretation of Regulation 30(2)(a) the focus of the Tribunal had to be upon the date on which it was alleged that the payment should have been made.  This required a focus upon the allegation.  It did not require a focus upon the date which the regulations prescribed as the date upon which a payment was due.  The allegation was, that the payment should have been made at a date falling within the 3 month period.  If either of those 2 approaches is unimpeachable, this appeal must fail.

5	Mr Frimond’s approach is that the second of those 2 grounds is unacceptable because it exposes the working time regulations to abuse.  It would be open, he points out, for a worker to put an invoice in, up to 6 years after the money might have been said to be payable, claim it should have been made on that date and then have the additional 3 months within which to submit his originating application.  As to the first point, he submits, that the invoices here had to be, by contract, submitted within 35 days of the payment falling due.  He accepts before us, that if he is wrong as to that, then this appeal must fail.  He derives the contractual obligation to submit an invoice from the Tribunal’s findings at paragraph 7, sub paragraph 2.  That reports that clause 9 of the agreement between the Respondents and the Appellant provides by clause 9.2:

“The company agree to pay within 35 days any invoices submitted relating to the work carried out under this agreement.”

It was pointed out in the course of argument to Mr Frimond that this is an obligation resting upon the company and does not in terms provide an obligation resting upon the worker.  Mr Frimond’s response was to point to paragraph 3 that follows which says:

“The practice adopted by the parties was that the Applicants would render invoices in respect of their services on a monthly basis and the Respondents would make payments against those invoices.”

That, he says, is a finding as to the contractual arrangements between the parties.  We think that argument is untenable.  What is described is a practice, not a contractual obligation.  What is described is the way in which the obligations were worked through, not what they were.  That leaves the submission which he then made, that the Employment Tribunal should have inferred or implied into the contracts that the workers should have claimed holiday pay, yet they did not.  Any such inference or implication would have to have a basis.  There is no basis which is apparent to us.

6	We do not therefore have to deal with the first of the 2 points made by the Employment Tribunal as a reason for concluding that Regulation 30 was such that these applications were submitted within time.  If we had to do so however, we would be attracted to the interpretation adopted by the Tribunal because the words, ‘alleged that’ must have some force.  It would appear on the face of it that those words would be unnecessary if the focus was simply upon the date when, under the regulations, a particular payment was first able to be claimed.  For those reasons we do not think this appeal discloses any arguable point of law and it must be dismissed.  Leave to appeal is refused.