APPEARANCES
| For the Appellants |
MISS DINAH ROSE
(of Counsel)
Instructed By:
UNISON
Legal Officer
Employment Rights Unit
1 Mabledon Place
London WC1H 9AJ
|
| For the Respondent |
MR JOHN CAVANAGH QC
(of Counsel)
Instructed By:
Barnsley MBC
Barnsley Metropolitan Town Hall
Church Street
Barnsley
S70 2TA |
MR JUSTICE WALL:
The issue
- In this appeal, the single question we are asked to resolve can be stated with deceptive simplicity. It is: for the purposes of calculating the redundancy payments owed to the Appellants by the Respondent, what is meant by a week's pay?
- The First Appellant, Mr. Michael Gilbert (Mr. Gilbert), the Second Appellant, Mrs. Janet North (Mrs. North) and the Third Appellant, Mrs. Lisa Bellwood (Mrs. Bellwood) all appeal from the decision of Mr. A.J. Glossop, Chairman of the Employment Tribunal sitting (without members) at Sheffield on 6 April 2000 and promulgated on 19 April that: -
…… the one week's pay for each of the above applicants should be calculated upon the basis of 1/52nd of the annual salary of each applicant …
- The three Appellants were formerly employees of Barnsley Metropolitan Borough Council (the Respondent). All three were ancillary school workers. Mr. Gilbert was employed as a technician at Dearne High School. The contractual documents relating to his employment appear to be two letters from the Respondent to him, the first dated 4 February 1997, which reads as follows:
"I wish to confirm the decision of the School Governing Body that with effect from 1 October 1995 your post as Technician be regraded to Scale 3 to reflect the changes to your duties and responsibilities.
1 The terms and conditions of employment embodied in the Scheme of Conditions of Service of the National Joint Council for Local Authorities' Administrative Professional, Technical and Clerical Services as adopted by this Authority and as supplemented by the Local Conditions of Service applicable to your group of employees as negotiated and agreed with the specified unions who are recognised for this purpose.
2 Salary is calculated on the following basis: £10578 x 43/52 and the payment for 43 weeks is deemed to take full account of the holiday payment including public holidays. Your next annual increment will be paid on 1 April 1998. You will be paid monthly by credit transfer."
- On 31 March 1999 another letter was sent to Mr Gilbert. It reads as follows:
"I wish to confirm that you are employed in a term-time only capacity for 37 hours per week.
You are paid for 44 weeks per year – in twelve equal instalments. The actual working year is 38 weeks and 2 days and the balance of 5 weeks and 3 days is a pro rata payment of annual and public holidays applicable to full time staff."
- In his form IT1 Mr Gilbert asserted:
"I was employed by (the Respondent) from 16 November 1987 until the date of my redundancy 31 August 1999.
I worked at Dearne High School. I was employed as a Technician on Scale 3 on the APT&C pay scale. I was at the time of my redundancy, on the top incremental point of Scale 3
For ease of payment the method used was that my annual salary which was 44 weeks was spread over 52 weeks and I was paid 12 monthly payments. In effect I banked pay while I was in work to be paid when I was not technically employed.
On receipt of my redundancy pay I received 16½ weeks at £199.51 per week which was £3,291.92.
I also received a payment in lieu of notice of £2,194.64.
My complaint to the Tribunal is that [the Respondent] should have calculated my weekly wage for redundancy and period of notice as my annual salary for a Scale 3 employee divided by 44 weeks. The period of time I was employed.
But they chose to divide my annual salary earned by 52 weeks including 8 weeks when I received no pay from [the Respondent]. …"
- Mr Gilbert then sets out the calculations which demonstrate that he was left with a short-fall on his redundancy payment of £726.16.
- Mrs. North was employed as a non-teaching assistant by the Respondent from 29 March 1977 until she was made redundant on 31 August 1999. The relevant contractual document in her case is a letter dated 28 September 1992 on the occasion of the re-designation of her post from childcare assistant to non-teaching assistant. The relevant paragraph of this document provided that:
"Salary is calculated on the following basis:
£9294 x 35/37 x 43/52 and the payment for 43 weeks is deemed to take full account of holiday payment, including public holidays.
You will be paid monthly by credit transfer and a form of authorisation is enclosed for you to complete and return to the Borough Treasurer.
…
A working week of 35 hours per week during term time and the actual times of duty will be at the discretion of the Headteacher to meet the needs of the school.
Term time is to be regarded as 192 days per year and as schools are open to pupils for only 190 days per year you are required to work two days per year by agreement with the Headteacher.
Annual holidays must be taken during periods of school closure."
- In her form IT1 Mrs North complained in the following terms:
"My complaint to the Tribunal is that [the Respondent] should have calculated both my redundancy pay and payment in lieu of notice by dividing my annual income by 44 weeks, the number of weeks I was contracted to work. But they chose to divide my annual salary by 52 weeks, which of course reduced the weekly pay they used in their calculations."
In her case, the redundancy shortfall was £725.39 and the payment in lieu of notice shortfall was £142.40.
- Mrs. Bellwood was employed as a word processor operator / clerical assistant by the Respondent at Dearne High School from 5 January 1994 until she was made redundant on 31 August 1999. In her case, the appointment was, throughout, "temporary" due to the school's budgetary procedures. The Respondent's first offer of employment dated 20 December 1993 specifies:
"An annual salary of £5796.95 within the salary grade of Scale 2, £5796.95 - £6080.90 which is supplemented by subsequent salary awards as applicable to your group of employees. Salary is calculated on the following basis: £9432 x 27½/37 x 43/52 and the payment for 43 weeks is deemed to take full account of holiday payment including public holidays.
You will be paid monthly by credit transfer and a form of authorisation is attached to be completed and returned to the Borough Treasurer.
…
A working week of 27½ hours during term time."
- The remaining provisions of the contract are identical to those for Mrs North. In Mrs Bellwood's case the "temporary" employment was regularly renewed. By a letter dated 19 June 1997, the Respondent offered Mrs Bellwood an additional 7½ hours a week, and her revised salary was calculated on the basis:
"£10,586 x 35/37 x 46/52 and the payment for 46 weeks is deemed to take full account of holiday payment including public holidays."
- In each case, the Respondent resisted the application on the basis that its calculation of the respective redundancy and notice entitlement payments had been correct. In each case the Respondent argued:
"Notwithstanding that the Applicant was only required to attend work for 44 weeks each year the salary for the post was an annual salary and was described in the contract of employment as such. Salary was paid to the Applicant in 12 equal monthly instalments.
Continuity of employment was preserved during the 8 weeks per year when the Applicant was not attending work. During those periods the Applicant would not be regarded as unemployed by the DSS and no state benefit would be payable.
In the circumstances it is clear that the correct method of calculating a week's pay is to divide the Applicant's annual salary by 52 and not 44, as argued by the Applicant. There is, therefore, no shortfall in the sums paid to the Applicant."
- The Tribunal accepted the Respondent's arguments, and dismissed the Appellants' claims. They now appeal. Before the Tribunal, the Appellants had been represented by a trade union official, Mr Wood. The Respondent was represented by a solicitor, Mr G. Kirk. The Respondent had taken the precaution of seeking the advice of leading counsel, Mr John Cavanagh QC, and Mr Cavanagh's opinion was before the Tribunal. It is, we think, clear – and this is no criticism of the Chairman – that Mr Cavanagh's opinion was highly influential in the Chairman's reasoning. We have had the advantage, not merely of the opinion, but of Mr Cavanagh in person representing the Respondent. We have also had the benefit of clear and trenchant submissions from Ms Dinah Rose of counsel for the Appellants, and we are grateful to both counsel for the assistance they have given us.
The Statutory Provisions
- Before dealing with the Chairman's reasoning and the arguments addressed to us on both sides in this appeal, we should, we think, set out the relevant statutory provisions. Section 220 of the Employment Rights Act 1996 (the Act) provides that the amount of a week's pay of an employee is to be calculated for the purposes of the Act in accordance with section 221 to section 229. Section 221, headed "General" reads as follows:
"(1) This section and sections 222 and 223 apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date.
(2) Subject to section 222, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week's pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.
(3) Subject to section 222, if the employee's remuneration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week's pay is the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks ending -
(a) where the calculation date is the last day of a week, with that week, and
(b) otherwise, with the last complete week before the calculation date.
……….
(5) This section is subject to sections 227 and 228."
- Section 222 is headed "Remuneration varying to time of work"
"(1) This section applies if the employee is required under the contract of employment in force on the calculation date to work during normal working hours on days of the week, or at times of the day, which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of those days or times.
(2) The amount of a week's pay is the amount of remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration.
(3) For the purposes of subsection (2) -
(a) the average number of weekly hours is calculated by dividing by twelve the total number of the employee's normal working hours during the relevant period of twelve weeks, and
(b) the average hourly rate of remuneration is the average hourly rate of remuneration payable by the employer to the employee in respect of the relevant period of twelve weeks.
(4) In subsection (3) 'the relevant period of twelve weeks' means the period of twelve weeks ending -
(a) where the calculation date is the last day of a week, with that week, and
(b) otherwise, with the last complete week for the calculation date.
(5) This section is subject to sections 227 and 228."
- Section 223 of the Act is headed "Supplementary" and reads:
"(1) For the purposes of sections 221 and 222, in arriving at the average hourly rate of remuneration, only -
(a) the hours when the employee was working, and
(b) the remuneration payable for, or apportionable to, those hours,
shall be brought in.
(2) If for any of the twelve weeks mentioned in section 221 or 222 no remuneration within subsection (1)(b) was payable by the employer to the employee, account shall be taken of remuneration in earlier weeks so as to bring up to twelve the number of weeks of which account is taken.
(3) Where -
(a) in arriving at the average hourly rate of remuneration, account has to be taken of remuneration payable for, or apportionable to, work done in hours other than normal working hours, and
(b) the amount of that remuneration was greater than it would have been if the work had been done in normal working hours (or, in a case within section 234(3), in normal working hours falling within the number of hours without overtime),
account shall be taken of that remuneration as if the work had been done in such hours and the amount of that remuneration had been reduced accordingly."
- It is common ground for the current issue that sections 224 to 228 are immaterial. However, section 229 is headed "Supplementary" and subsection (2) reads as follows:
"(2) Where under this Chapter account is to be taken of remuneration or other payments for a period which does not coincide with the periods for which the remuneration or other payments are calculated, the remuneration or other payments shall be apportioned in such manner as may be just."
The arguments before the Tribunal
- The Appellants' case before the Tribunal was recorded by the Chairman in the following two paragraphs from his Extended Reasons:
"6 It was Mr Wood's argument that the reality of the position was that the money was earned by each employee during the periods he or she actually worked and it was only for administrative and possibly the applicants' and respondent's convenience that it was paid over the full year. In Mr Wood's words the applicants were banking money of their own for later payment.
7 This argument is supported by two particular items, one the decision of another tribunal case [name and reference given] which although not binding on this tribunal is one that clearly should be considered as the facts appear to be similar. Secondly a letter, number 28 in the bundle, addressed to Mr Gilbert which clearly could be construed as meaning that the employment was only for 44 weeks despite the fact that payment was made in 12 weekly (sic) instalments."
- The Chairman then turned to examine Mr Cavanagh's opinion and was particularly impressed by the point that the Appellants were all paid throughout the twelve months of the year. It followed, in the Chairman's judgment, that the respondent's obligations under the contract applied throughout the year and that if the Appellants did not have year round contracts it must follow that they had fixed term contracts for each term. The Chairman held, however, that there was no reference in the letters of appointment no reference to dates of commencement or termination. Without placing undue weight on the language in the documentation as to appointment, the Chairman was persuaded in the main by the point that payments of salary were made monthly to the Appellants throughout the year.
- The Chairman was concerned that Mr Gilbert had been able to obtain Jobseeker's Allowance during the eight weeks for which, on his case, he was not paid. Whilst the Chairman was of the view that the National Insurance tests were not the same as those set out under the Act, this factor caused him nonetheless to look very hard at Mr Cavanagh's opinion. The Chairman's view was that a reasonable man, looking at the matter in a commonsense way, would consider that a person who is paid by means of a regular monthly equal salary was employed on an annual basis. He therefore came to the conclusion in answer to the first question that each of the Appellants was employed throughout the year.
- It was common ground before the Tribunal, that if this point was wrong, then the Appellants' view would prevail. Having, however, answered the first question that the Appellants were employed on annual contracts, the Chairman regarded it as "inevitable" that the week's pay as calculated under the terms of the Act must be, as Mr Cavanagh argued, a 52 week basis rather than a 44 or 43 week basis. The question was "how much the Appellants received for each week, not how much he or she happened to earn in any particular week". On this basis, the Chairman dismissed the applications.
The Appellants' submissions
- Paragraphs 6 and 7 of the Notice of Appeal, which was settled by Ms Rose, is in the following terms: -
"6 The ground upon which this appeal is brought is that the Employment Tribunal erred in law at paragraphs 15-16 of the Decision, concluding that if the Appellants were employed for a 52 week period, it followed pursuant to sections 220-229 of the Employment Rights Act 1996 that a "week's pay" should be calculated on a 52 week basis rather than a 43 week basis.
7 The Tribunal ought to have concluded that on the proper construction of sections 221-224 of the 1995 Act, a week's pay for each of the Appellants should have been calculated on the basis of their annual salary divided by the number of weeks of work contracted for and actually worked by the Appellants (43 or 44 weeks) in respect of which their salary was apportionable, and not the number of weeks over which payment for the work was evenly spread (52) weeks."
Annual contracts
- As is apparent from the manner in which ground 7 of the Notice of Appeal is drafted, Ms Rose, in her submissions before us, accepted that in the case of each Appellant, the contract of employment was an annual contract, and that each Appellant was employed throughout the year. This concession has troubled us, since there seems to us a highly arguable case to the contrary.
- We were not referred to the "terms and conditions of employment embodied in the
Scheme of Conditions of Service of the National Joint Council for Local Authorities' Administrative Professional, Technical and Clerical Services as adopted by this Authority and as supplemented by the Local Conditions of Service applicable to your group of employees as negotiated and agreed with the specified unions who are recognised for this purpose" referred to in Mr. Gilbert's contract of employment (see paragraph 4 above). We assume, therefore, that these are immaterial to the question we have to answer.
- In Mr. Gilbert's case, however, it would appear that the annual salary for a scale 3 technician was £10, 578 with effect from 1 October 1995. By the time he was made redundant in August 1999, it was £12, 663. However, Mr. Gilbert was not paid the annual rate. He was employed "in a term time only capacity" for 44 weeks a year. The letter of employment states in terms that "the annual working year is 38 weeks and 2 days and the balance of 5 weeks and 3 days is a pro rata payment of annual and public holidays applicable to full time staff".
- To achieve the meaning of "a week's pay" for which the Respondent argues, the annual rate for the grade (£12,663) has first to be divided by 52 and then multiplied by 44, to obtain the sum for which Mr. Gilbert was paid for his 44 weeks (inclusive of holidays). The 44 weeks for which he was paid (his weekly rate of pay) then has to be divided by 52. But manifestly, these extra 8 weeks are not weeks in which he is contracted to work, and, arguably, are not weeks for which he was entitled to be paid. Indeed, as we know, Mr. Gilbert was able to obtain job seekers' allowance. On this construction of the contract, it is, we think, arguable that the fact of payment by 12 monthly instalments would not result in his contact of employment being an annual contract. Identical considerations apply to the contracts of Mrs. North and Mrs. Bellwood. The latter says she was "technically unemployed" for 8 weeks a year.
- However, although the point was flagged up by Mr. Cavanagh as potentially contentious, the case was argued before us on the basis that these were annual contacts, and we feel constrained to deal with the appeal on that basis.
The arguments on section 221-223 of the Employment Reform Act 1996 (ERA 1996)
- It was common ground between counsel that the Appellants were all employed under contracts where there were normal working hours (ERA 1996, section 221(1) applying, in addition, sections 222 and 223). Ms Rose submitted, however, that their normal working hours differed according to whether a week was in term time, or the school holidays. In the latter, (particularly the 8/9 weeks which were not "part of the actual working year" in Mr. Gilbert's case), she argued that no hours were worked at all. It was therefore her submission that section 222 applied, and that "the remuneration payable for, or apportionable to, any week" varied depending on whether it was term time or holidays (section 222(1)). In fact, she submitted, all their remuneration was payable in respect of term time weeks, and in effect, the Appellants worked a form of "term time on, holidays off" shift.
- In these circumstances, Ms Rose argued that the "week's pay" for the Appellants for the purposes of their redundancy payments fell to be calculated in accordance with Section 222(2) and (3) and 223(1) and (2) of the Act. Under these sections each Appellant's week's pay was to be calculated as the amount of remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration. This, she argued, required the Tribunal to undertake the following exercise:
(a) It must first calculate the average number of weekly hours by dividing by 12 the total number of the employee's normal working hours during the 12 week period prior to the calculation date (see Section 222(3)(a)).
(b) In performing that calculation, the Tribunal must disregard any week in which no remuneration was payable by the employer to the employee, but instead it should take account of earlier weeks so as to bring the total up to 12 (see Section 223(2)). This would have the effect of removing from the calculation any holiday week.
(c) The Tribunal should then calculate the average hourly rate of remuneration payable in the relevant 12 week period, taking account only of the hours when the employee was working, and the remuneration payable for, or apportionable to, those hours.
- Ms Rose submitted that the effect of this calculation in the case of each Appellant would be that their week's pay would be calculated on the basis of the hourly pay apportioned to the weeks during which they were working, or for which pay was apportioned as holiday pay. The remaining weeks of the year were not to be taken into account in calculating average weekly hours or average hourly pay, since they were not weeks in respect of which remuneration was payable or apportioned. The mere fact that, for administrative convenience, the Appellants received their salaries for their 43 or 44 weeks of normal working hours in 12 equal instalments did not mean that pay was apportioned to all 52 weeks of the year. Their letters of appointment made it clear that they were being paid only in respect of the term time weeks they worked, and their pro rata holiday entitlement.
- For the Respondent, Mr Cavanagh adopted the arguments contained in his previous opinion which had succeeded before the Tribunal. Whilst he acknowledged that sections 221 to 223 did not specifically deal with the position of employees such as the Appellants, who have normal working hours in some weeks and no working hours at all in other weeks, his submission was that their case nonetheless fell within section 221(2) of the Act. He argued that the Appellants' remuneration for employment in normal working hours (whether by the hour or week or other period) did not vary with the amount of work done in the period. They were paid the same in holiday periods as in term time.
- Mr Cavanagh also argued that the first condition in Section 221(2) was satisfied because one could legitimately regard "normal working hours" as extending to cover jobs with normal working hours which differed from one week to another, and in some of which the "normal working hours" were no hours at all. He also argued that the phrase in brackets in subsection (2) – "whether by the hour or week or other period" clearly meant that "normal working hours" did not necessarily mean the same regular hours each week. He further pointed out that no provision was made elsewhere in Chapter II of the Act for employees who had a period or periods during the year when they had no working hours at all. This would, he said, include not only school employees but factory workers in industries for which there was a fixed "holiday fortnight".
- Mr Cavanagh then argued that Section 222(1) of the Act, like Section 221(2), imposed two conditions. The first was that the employee was required under the contract of employment in force at the calculation date to work during normal working hours on days of the week, or times of the day, which differed from week to week or over a longer period; and, secondly, the remuneration payable for or apportionable to any week varied according to the incidents of those days or times. Mr Cavanagh accepted that the first condition was met in the instant case (assuming that "normal working hours" covered weeks with no hours at all). However, in his submission, the second condition was not satisfied. It was, he argued, clear that the remuneration payable to the Appellants did not vary according to whether they were required to work in a particular week. He argued that Section 222(1) was designed to cover shift and rota workers who are paid more in some weeks than in others because, for example, they are working nights or unsocial hours. The purpose of Section 222, he submitted, was to average out the rate of pay where it varied from week to week because of a shift or rota system. It was not designed to cover the type of working arrangement presently under consideration. Accordingly, he argued that the words "apportionable to" in Section 222(1) had a limited meaning, and were placed there by the Parliamentary draftsman simply to make clear that the section dealt with the cases of employees who earn more in some weeks than in others. "Apportionable to" did not mean "attributable to".
- So far as Section 223(1) was concerned, Mr Cavanagh submitted that subsection (1)(a) was designed to make clear that employees cannot count notional hours with which they are credited (but during which they have in fact done no work). The subsection does not say that only the weeks when the employee was working should be brought in. He submitted that the very fact there is no comparable provision which states that only the weeks when the employee was working shall be brought in to some extent supported the view that weeks count even if the employee carries out no work during that week.
- In these circumstances and on the basis that Section 221(2) applied, Mr Cavanagh submitted that "a week's pay" should be calculated by reference to 1/52nd of the annual salary and not 1/43 or 1/44. Mr Cavanagh also argued that a similar position was reached if, contrary to his primary submission, the Appellants fell within Section 222. That section required the person calculating the payment to take the remuneration payable to the employee in respect of the last twelve weeks, and work out the average hourly rate. That average hourly rate was then multiplied by the average number of weekly normal working hours. Mr Cavanagh referred to the decision of the EAT in Secretary of State for Employment v Crane [1988] IRLR 238. If, as in Crane the remuneration which the employee was entitled to receive for the last twelve weeks was not the same as the amount actually earned in the last twelve weeks, and if Mr Cavanagh's analysis of the Appellants' contract was correct, the amount which was payable to the Appellants in any period of twelve weeks for the purposes of Section 222 was the amount they were entitled to under the contract, not the amount which could be apportioned to the hours worked in that particular week. They were, accordingly, entitled to 1/52 of the annual salary.
- In reply, Ms Rose pointed out that Mr Cavanagh's submission that the Appellants' pay should be calculated in accordance with Section 221(2) of the Act ignored the provision in that subsection that it was "subject to Section 222". She argued therefore that Section 221(2) did not apply to employees such as the Appellants, whose normal working hours differed from week to week.
- She also joined issue with Mr Cavanagh's submission that Section 222(1) did not apply to the Appellants because the remuneration payable to them did not vary according to whether they were required to work in a particular week. She submitted that the Appellants' salaries were in fact payable only in respect of weeks worked or holiday weeks, and were paid in instalments only for convenience. Ms Rose also submitted that in his construction of Section 223(1)(a) Mr Cavanagh had overlooked Section 223(2) which provides that weeks in relation to which no salary is payable should be disregarded.
Analysis
- It is clear to us that draftsman of sections 221 to 223 of the Employment Rights Act 1996 did not have in mind contracts of employment of the type found in this case. There is, accordingly, in our judgment a degree of artificiality in the submissions made by both Ms. Rose and Mr. Cavanagh. In their attempts to apply the statutory provisions to the terms of these contracts. Furthermore, the process of analysis is not assisted by the fact that, as both counsel acknowledged, the statutory provisions are themselves opaque. In addition, there is always a risk, we think, that immersion in the minutiae of the Statute carries with it the risk of losing sight of the broader picture.
- After much consideration, however, we have come to the conclusion, on a fine balance, that the construction for which Ms. Rose argues is to be preferred, and that the appeal should be allowed.
- Although the contracts of employment in this case are agreed to be annual contracts, we cannot lose sight of the reality, which seems to us to be at the heart of each of these contracts, namely that the Appellants were paid to work for a total of 43 or 44 weeks a year (including holiday periods) and that none of the Appellants was required to work, did work, or were paid to work in the remaining 8/9 week of the year. Mr. Gilbert's contract of employment says in terms that he is employed "in a term-time only capacity for 37 hours per week". The contract goes on to make it clear that he was paid for 44 weeks a year, and that the actual working year is 38 weeks and 2 days, with the balance of 5 weeks and 3 days being a pro rata payment of annual and public holidays applicable to full time staff. In this context, it is difficult to regard the manner of payment "in twelve equal instalments" as being anything other than an administrative convenience, and we cannot give it the weight which Mr. Cavanagh's submissions require it to assume.
- We are therefore unable to agree with Mr. Cavanagh that section 221(2) applies. His construction of the sub-section is dependent on the proposition that the Appellants were paid the same in holiday periods as in term time. However, we do not think it follows that because the Appellants' pay was artificially divided into twelve monthly instalments, their remuneration for employment in normal working hours did not vary with the amount of work done in the period (the test under section 221(2)). The remuneration, in our view, did vary. It did not vary during the hours they actually worked during the 43/44 weeks a year, but it did vary during the 7/8 weeks they did not work at all. In our view, the Appellants' "normal working hours" must mean the hours they worked in a normal working week. The phrase cannot mean no hours in weeks when they are plainly not required to work.
- Equally, the phrases in section 223(1) "the hours when the employee was working" and "the remuneration payable for, or appportionable to, those hours" must, in our judgment, mean what they say. They cannot, we think, apply to hours during the 8/9 weeks a year when the three Appellants were not working
- We acknowledge that Ms. Rose's argument is also open to the criticism that it stretches the meaning of statutory language. In particular, it is arguable that the Appellants were not required "to work" during the 8/9 week period of the year outside the 43/44 working weeks of their contacts, and thus fall outside section 222(1). However, on balance, we think, as we have already said, that the correct way to look at this case is by looking at the reality. These Appellants were employed to work 43/44 weeks of the year. During the remainder of the year, they were not required to work, nor were they paid.
- A week's pay, in our judgment, must relate to a week's work. Since the Appellants were required to work, and were paid to work for only 43/44 weeks it seems to us just that their modest redundancy payments should be calculated on the basis of the weeks they actually worked, and not on the basis of a notional 52 week calculation which takes into account weeks they did not work and for which they were not paid to work.
- The appeal will, accordingly, be allowed, and orders made in favour of the Appellants in the sums claimed by each in their respective IT1s or such other sums as may be agreed. In the event of disagreement, the matter will be remitted to the Tribunal for resolution.
