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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Manpower UK Ltd v. Vjestica [2005] UKEAT 0397_05_1810 (18 October 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0397_05_1810.html Cite as: [2005] UKEAT 397_5_1810, [2005] UKEAT 0397_05_1810 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Transcript of Proceedings
For the Appellant | MR CHRISTOPHER WALKER (Of Counsel) Instructed by: Messrs Zatman & Co Solicitors 1 The Cottages Deva Centre Trinity Way Manchester M3 7BE |
For the Respondent | MR PETER EDWARDS (Of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors 1 Snow Hill Plaza St Chad's Queensway Birmingham B4 6JG |
SUMMARY
Contract of Employment and Working Time Regulations
Construction of contractual term as to quantum of holiday pay – meaning of 'earnings'. Meaning of remuneration under regulation 16 WTR/S.224 ERA 1996.
HIS HONOUR JUDGE PETER CLARK
"Non-payment of holiday pay – WTR and Unauthorized deductions from wages."
He was supplied by the Respondent to work at the BMW Manufacturing Plant in Cowley, Oxford.
Ainsworth
The Contractual Term
"Your holiday pay will be based on your average earnings over the 12 weeks prior to your holiday."
Thereafter, the relevant term read, so far as is material:
"If you are paid weekly your holiday pay calculation will be based on your average earnings over the 12 weeks prior to your holiday. Weeks in which you do no work and/or received no pay will not be included in the calculation."
This case has proceeded on the basis that the later wording does not involve any variation of the term as originally drafted.
The Statutory Provisions
"(1) 'A worker is entitled to be paid in respect of any period of annual leave to which he is entitled…at the rate of a week's pay in respect of each week of leave.
(2) Sections 221 to 224 of the 1996 Act (ERA) shall apply for the purpose of determining the amount of a week's pay…subject to modification in subsection (3)."
Section 224 ERA defines a week's pay in employments with no normal working hours as:
"(2) the amount of a week's pay is the amount of the employee's average weekly remuneration in the period of twelve weeks ending-
(a) where the calculation date is the last day of a week, with that week, and
(b) otherwise, for the last complete week before the calculation date."
Part 2 ERA claim for unauthorised deductions
"By section 13(1) an employer shall not make a deduction from wages of a worker employed by him…"
Section 23 provides for a complaint under section13. By section 27(1) 'wages' includes payment of holiday pay referable to his employment whether payable under his contract or otherwise.
The Contractual Formula
Conclusion on the Contractual Term