Appeal No. EAT/1104/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 March 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR D CHADWICK
MR N D WILLIS

JANINKA LALOMIA	APPELLANT

MISS L D GABLE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	No appearance or
representation by or 
on behalf of the Appellant 

	

JUDGE J McMULLEN QC

1	This is an appeal by Ms Lalomia against a Decision of the Exeter Tribunal, Mr H Parker, Chairman, sitting alone, sent to the parties on 28 August 2001.  The Applicant, Miss Gable, was a waitress working at the Respondent’s restaurant, called Pinocchio’s.  She worked there from 27 September 2000 to 27 April 2001.  She was paid at the rate of £3.50 an hour.  

2	When she left, she claimed she was entitled to holiday pay, pursuant to Regulation 13 of the Working Time Regulations 1998.  Regulation 33 provides that:
“a worker’s leave year for the purpose of this Regulation begins on such date during the calendar year as may be provided for in a relevant agreement or in effect if there is no such provision it shall begin on the date when the employment begins.”

3	The Chairman had to decide what was the entitlement of the Applicant to holiday pay and what was the rate of pay, at which that entitlement was to be paid.  Most of the issues in the case were resolved in favour of the Applicant and there is no appeal from them. The Chairman’s Decision that there was no written contract of employment and that, in breach of the Employment Rights Act 1996 section 1, no particulars were provided, remains unchallenged.  

4	The dispute about the evidence, upon which the Chairman decided there was a direct conflict which he had to resolve, concerned the existence of a holiday year and the number of hours which the Applicant worked.  Resolving the conflict in favour of the Applicant, he decided there was no agreement as to the holiday year, thus finding against the Respondent’s case that the holiday year began on 1 April in any year.  He therefore found that the entitlement to a leave year began on the starting date of the Applicant’s employment, 27 September 2000.  She thus worked for seven months.  

5	The Tribunal Chairman was told that there was no dispute about the Applicant’s entitlement to holiday pay for the period 1 – 27 April 2001.  That is because the Respondent conceded that the holiday year began then.  The Chairman was also told that an ex gratia payment had been made of £105.01.  The Chairman found that the Applicant had taken no holiday during the relevant period and thus was entitled to two weeks holiday in respect of the approximately twenty six weeks leading up to 1 April 2001.  

6	The first arguable problem which we perceive is that the Chairman, having decided that the leave year did not begin on 1 April, should have looked at the aggregate period of seven months and determined that the number of weeks holiday to which the Applicant was entitled was 2.33 weeks.  We consider that that is simply a matter of construction and it is reasonably arguable that the Applicant’s entitlement should first be calculated with reference to the seven months of employment.  

7	The second issue relates to the arithmetic.  In her Originating Application, the Applicant said she earned a basic wage or salary of £3.50 per hour and took home £120 a week.  The Chairman found that that would have been £140 gross, giving her effectively 40 hours’ work at £3.50 per hour.  In the Notice of Appearance, the Respondent answered box 6 by saying:
“Are the details given by the applicant about wages/salary take home pay or other bonuses correct?
Yes (approx).”

8	The Chairman found on that material the Applicant’s entitlement was £280.  The Respondent, however, turned up at the Tribunal hearing with a document prepared by her external bookkeeper, indicating a more accurate assessment of the Applicant’s hours than the approximation which she had agreed in her Notice of Appearance.  This indicates almost the entire career of the Applicant with the Respondent, and we have to say that since this document was in front of the Chairman, according to the written submission made by the Respondent in these proceedings, he would have seen at once that the Applicant earned more than £140 in only three or four weeks,.  If we are right that the correct period ends on the date of leaving, then the reference period for the purposes of calculating holiday pay is the last twelve weeks.  Conveniently, this figure has been done for us and for the Chairman, and this indicates that the average pay gross for the last twelve weeks of her employment was £120.83 and not £140;  2.33 weeks equals £281.93 as being, therefore, the correct figure due to the Applicant, based on that analysis.  

9	From this, we take it, is to be deducted a sum of £105.01 and we would consider that an error has been made in law in failing to do the correct arithmetic, all other matters having been found by the Chairman in favour of the Applicant, and not susceptible to challenge here.  It therefore follows that it is strongly arguable that the award of the Chairman in the sum of £194.99 is incorrect and if the Applicant is to give credit for £105.01 then the balance due to her would be £176.92.     

10	Ms Gable is here and has listened to our judgment and when this is printed and sent to Ms Lalomia, the three of us on the Tribunal hope that the parties might be able to see a way forward rather than expending large sums of money coming up from Cornwall to a full hearing.  Nevertheless, this case will be listed in Category C with a one hour estimate.  
…..
Now Miss Gable, I know you are not here, technically, but that £105, was that in respect of the April holidays or what?  
No, she gave me that in good will for the rest of the time.  
So how much have you received from her in holidays altogether?
Just the £105 plus the time between 1 April and when I left.
How much did she pay you for that?
I think it was about £28.  
Right, I think that should come off too, should it not? So I will continue with the judgment.
A sum has also been paid pursuant to Ms Lalomia’s acceptance that money was due to the Applicant for the month of April which we understand to be in the sum of £28.  We are not able to resolve the issue of precisely how much, in addition to £105.01 has been paid by the Respondent to the Applicant, but we note that the Respondent accepted a liability in holiday pay for the month of April and, doing the best we can, that might come to about £28 which would obviously have to come off the figure of £176.92, but that is a matter that would have to be left to the full Appeal Tribunal to determine and the parties should come armed with those figures for the full hearing.