Bath Hill Court (Bournemouth) Management Company Ltd v Anthony Coletta

JurisdictionEngland & Wales
JudgeLord Justice Underhill,Lord Justice Irwin,Lady Justice Nicola Davies
Judgment Date17 October 2019
Neutral Citation[2019] EWCA Civ 1707
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: A2/2018/1051 A2/2018/1343
Date17 October 2019

[2019] EWCA Civ 1707

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

HH Judge Eady QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(Vice-President of the Court of Appeal (Civil Division))

Lord Justice Irwin

and

Lady Justice Nicola Davies

Case No: A2/2018/1051 A2/2018/1343

Between:
Bath Hill Court (Bournemouth) Management Company Limited
Appellant
and
Anthony Coletta
Respondent

Mr Timothy Brennan QC and Mr Mark Green (instructed by Ashfords LLP) for the Appellant

Ms Betsan Criddle and Mr Ben Jones (instructed through Advocate, with the assistance of Paris Smith LLP) for the Respondent

Hearing date: 25 th July 2019

Approved Judgment

Lord Justice Underhill

INTRODUCTION

1

There are before us both a substantive appeal and an application for permission to appeal, out of time, from separate decisions at different stages of the same proceedings in the employment tribunal (“the ET”).

2

The Claimant, who is the Respondent before us, was employed from February 2000 until his dismissal on 4 August 2015 as a live-in porter in a block of flats in Bournemouth, of which the Appellant (“BHC”) was the management company. In November 2014 he brought proceedings in the ET claiming that BHC had paid him less than the national minimum wage (“the NMW”): the essence of his case was that it was necessary for NMW purposes to take into account periods when he was “on-call” at night, albeit in his flat on the premises and permitted to sleep. The claim was treated as a claim for unlawful deductions from wages contrary to Part II of the Employment Rights Act 1996. By a Judgment promulgated on 9 September 2015 the ET found in his favour; and that decision was upheld by the EAT (Judge Eady QC sitting alone) on 2 June 2016. The application for permission to appeal relates to that decision (“the liability decision”); it is almost two years' out of time, and BHC will accordingly need an extension.

3

Following a remedy hearing in the ET, on 23 December 2016 the Claimant was awarded £44,603 by way of arrears in respect of the period of six years prior to the commencement of proceedings: the ET applied a cut-off of six years on the basis that the claim was caught by the provisions of the Limitation Act 1980. He appealed to the EAT contending that the 1980 Act had no application and that he was entitled to arrears in respect of the whole period of his employment. On 29 March 2018 Judge Eady allowed his appeal, and judgment was substituted in the agreed sum of £100,252.42. The substantive appeal relates to that (“the quantum decision”).

A. THE LIABILITY DECISION: APPLICATION FOR EXTENSION

4

For the purpose of the liability decision the ET and EAT followed a number of authorities which were thought to establish that, in (broadly speaking) cases like the Claimant's, on-call hours had to be taken into account for NMW purposes. In the conjoined appeals in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad [2018] EWCA Civ 1641, [2019] ICR 241, (“ Royal Mencap” for short), which was handed down on 13 July 2018, this Court disapproved the approach taken in those authorities. In reliance on that decision BHC wishes to appeal against the liability decision of the EAT. Permission has in fact been given to the claimant in Royal Mencap to appeal to the Supreme Court; but for the present BHC is entitled to proceed on the basis that it is authoritative.

5

As I have said, the proposed appeal would be almost two years out of time. It should have been filed by 23 June 2016 (i.e. 21 days after the EAT's decision – see CPR 52.12), and it was not in fact filed until 4 May 2018. Mr Timothy Brennan QC, who appears for BHC in this Court (though he did not appear below), submits that the necessary extension should be granted pursuant to CPR 3.2 (1). In his oral submissions he frankly acknowledged that an application for an extension of that length would normally be hopeless, but he said that the circumstances in the present case were unusual in two respects. First, the decision in Royal Mencap had effected a complete change in the landscape as regards the treatment of on-call workers for NMW purposes and had rationalised what had previously been the confused state of the case-law. Secondly, and importantly, the proceedings were still ongoing because of the dispute as to quantum. In that connection Mr Brennan suggested (though only in his oral submissions) that it would be open to the Court to grant an extension on the condition that if the appeal were successful the Claimant would not be required to repay the £44,000 already paid, so that the real effect of the extension would only be to deprive him of the benefit of the further £55,000-odd to which he would be entitled if the quantum appeal failed 1. Those features taken together meant that justice required the grant of an extension.

6

The Court did not require to hear submissions from Ms Betsan Criddle, who appeared for the Claimant (as she also did in the EAT). In my view it is clear that this would not be a proper case for an extension. There is no need to recapitulate the well-known case-law about the principles applying to applications for the grant of an extension of time for appealing to this Court: see principally R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, [2015] 1 WLR 2472. Mr Brennan was right to accept that an extension of the length sought in this case would be quite exceptional. The features on which he relies are not sufficient to justify it, whether considered individually or together.

7

As to the first, as Mr Brennan himself submitted, at the time of the liability decision in the EAT the case-law in this area was indeed confused, and by no means all the decisions favoured workers (see the discussion at paras. 83–84 of my judgment in Royal Mencap). An example of a case in which the worker's claim was rejected was the decision of the EAT in Shannon v Rampersad itself, which was upheld in Royal Mencap: in fact BHC itself relied on it in its submissions in the EAT. There was no reason for BHC to think that a further appeal would be futile, and it would have been open to it to appeal if it had chosen, as the respondent in Royal Mencap did.

8

Nor do I believe that the fact that the proceedings are ongoing makes a difference in this case. The liability and quantum decisions are self-contained. Even if we had imposed a condition of the kind suggested by Mr Brennan as regards the £44,000, the normal consequence of the Claimant succeeding on the quantum appeal would be that he would thereupon become entitled to the further £55,000, since liability had been determined. The quantum proceedings would ordinarily have been concluded prior to the decision in Royal Mencap. It is only the delay caused by BHC's initial (unsuccessful) liability appeal, coupled with the Claimant's (successful) quantum appeal and BHC's further appeal to this Court, which meant that they were still alive in July 2018. If the appeal were to be permitted to proceed and were to succeed (which could not occur before next year at earliest, since it would be necessary to await the decision of the Supreme Court), the Claimant would be deprived of a sum which in the ordinary course he should have received without question long before that.

B. THE QUANTUM DECISION

THE STATUTORY PROVISIONS

The National Minimum Wage Act

9

The right to the NMW derives from the National Minimum Wage Act 1998, section 1 (1) of which provides:

“A person who qualifies for the national minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the national minimum wage.”

10

The 1998 Act does not itself provide a mechanism for enforcement of the right conferred by section 1 (1), but section 17 (1) provides:

“If a worker who qualifies for the national minimum wage is remunerated for any pay reference period by his employer at a rate which is less than the national minimum wage, the worker shall at any time (‘the time of determination’) be taken to be entitled under his contract [emphasis supplied] to be paid, as additional remuneration in respect of that period, whichever is the higher of —

(a) the amount described in subsection (2) below, and

(b) the amount described in subsection (4) below.”

11

I need not set out the terms of sub-sections (2) and (4), but the effect of section 17 (1) when read with them is to provide the worker with a contractual entitlement to be paid at the specified rate. It follows that any underpayment can be recovered by ordinary civil proceedings in the County Court – or, if the claim arises or is outstanding on the termination of the employment, in the ET pursuant to the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the 1994 Order”) – although it is much more common for claimants to proceed under the 1996 Act, as explained below, as happened in this case.

Part II of the Employment Rights Act

12

Part II of the Employment Rights Act 1996 substantially re-enacts the provisions of the Wages Act 1986. It has been amended since the date with which we are concerned (see para. 35 below), but the relevant provisions as at the material date are as follows.

13

Section 13 confers on workers a right “not to suffer unauthorised deductions” from their “wages”. That term is defined by section 27 (1) as (so far as relevant):

“… any sums payable to the worker in connection with his employment, including —

(a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise,

…”

That language plainly covers a claim to unpaid sums to which the worker is contractually entitled under the 1998 Act.

14

Section 23 (1) gives the employment tribunal jurisdiction...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT