Mr D Williams v The Commissioner of the Police of the Metropolis: 2206410/2021
| Jurisdiction | England & Wales |
| Judgment Date | 27 August 2022 |
| Date | 27 August 2022 |
| Published date | 09 September 2022 |
| Court | Employment Tribunal |
| Citation | 2206410/2021 |
| Subject Matter | Unlawful Deduction from Wages |
Case Number 2206410/2021
1
EMPLOYMENT TRIBUNALS
Claimant Respondent
Mr D Williams
v
The Commissioner of the Police
of the Metropolis
Heard at: London Central (by video)
On: 21 and 22 July 2022
Before: Employment Judge P Klimov
Representation:
For the Claimant: Mr James Williams (of Counsel)
For the Respondent: Mr Christopher Edwards (of Counsel)
RESERVED JUDGMENT
1. The Claimant’s claim for a payment in lieu of leave under Regulation 14(2) of the
Working Time Regulations 1998 was presented in time and shall proceed to be
determined at a final hearing to be listed by the Tribunal.
2. The Tribunal does not have jurisdiction to consider the Claimant’s claim for
unauthorised deduction from wages under Part II of the Employment Rights Act
1996.
Case Number 2206410/2021
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REASONS
Background and Issues
1. This was an open preliminary hearing ordered by Employment Judge Norris on 8
March 2022 to consider the issues set out in the agreed List of Issues (see
Appendix).
2. Mr Williams appeared for the Claimant and Mr Edwards for the Respondent. Both
Counsel prepared skeleton arguments. I am grateful to both Counsel for their
detailed and very helpful submissions.
3. I was referred to various documents in the 153-page bundle of documents, as well
as an email exchange between the parties’ solicitors dated 18 July 2022. I was
also referred to various authorities in the 664-page authorities’, as well as an
additional two authorities sent to me by the parties during the hearing. There were
no witnesses.
4. The parties were not in dispute on the basic factual background, which was
sufficient for the purposes of the issues I needed to determine. Accordingly, I did
not need to make any findings of fact.
Factual and Procedural background
5. I adopt the background set out in Mr William’s skeleton, for which I am grateful.
“C” obviously means the Claimant and “R” means the Respondent. The numbers
in square brackets refer to the relevant page in the hearing bundle.
C was an officer serving with R from 26 August 1997 until 21 April 2021,
when he was compulsorily retired on ill health grounds. On 8 October 2014
C was suspended by R (and, as it turned out, never returned to work). He
was remanded in custody from 8 – 28 October 2014. He was then kept on
an electronically monitored curfew from 28 October 2014 – 1 November
2019. Thereafter he was on unconditional bail, but he suffered from various
serious mental health conditions (diagnosed between April 2015 and
February 2017).
During this period C was involved in protracted and complex litigation. In
particular, C was prosecuted in 2014 for various criminal offences, although
C was never convicted. The trial was finally listed for May 2021, but in March
2021 the Court ruled that the Claimant had no case to answer on the main
charge against him. The CPS offered no evidence on the remaining charges
and the prosecution collapsed. C retired on health grounds on 21 April 2021.
Mr Williams was paid his full salary throughout this period but did not take
any holiday at any point. Before the termination of his employment, C wrote
to R, claiming payment for untaken holiday for the whole period from his
suspension in 2014. On 21 April 2021, R responded, setting out its position
Case Number 2206410/2021
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that C was entitled to 54 hours of holiday pay [66]. This was calculated as
14 hours for the final, incomplete leave year from 1 April 2021, plus 40 hours
for leave carried over from the previous leave year.
Following some further correspondence, on 7 May 2021 R agreed to pay C
174 hours of holiday pay: 160 hours for each of the two complete leave years
from 1 April 2019 – 31 March 2020 and 1 April 2020 – 31 March, plus 14
hours for the period 1 – 21 April 2021 [102]. The sums due for these periods
were paid to the Claimant on 20 May 2021 (£1,172.74 gross) [151-2] and 21
June 2021 (£5,782.05 gross) [153].
C contacted ACAS on 29 July 2021 and the certificate was issued on 1
September [19]. The ET1 with attached Grounds of Complaint was lodged
in the London Central Employment Tribunal on 28 September 2021 [1]. R
lodged its ET3 with attached Grounds of Resistance on 25 November [20].
There was a case management hearing before EJ Norris on 8 March 2022
[34]. She set the matter down for a two-day PH to consider certain matters
relevant to the Tribunal’s jurisdiction, by reference to an agreed list of six
issues [38]. [..].
6. The Claimant brought a claim for accrued holiday pay under the Working Time
Regulations 1998 (“the WTR”); and, in the alternative, under Section 13 of the
Employment Rights Act 1996 (“the ERA”), and for breach of his rights under Article
7 of the Working Time Directive 2003/88/EC (“the Directive”).
7. The Respondent’s position is that the claims under the WTR and the ERA are
time barred and the Tribunal does not have jurisdiction to consider them.
8. The Respondent further contends that the Claimant does not have standing to
bring his claim under the ERA because, as a former police constable, he was not
a worker within the meaning of the ERA.
9. Finally, the Respondent argues that there is no free-standing claim for breach of
the Directive which the Claimant could bring, and in any event any such claim
would be out of time.
10. I shall deal with each issue in turn, setting out the relevant law, the parties’
submissions, and my conclusions, starting with Issue 1.
Issue 1: Time Limit under the WTR
The Law
11. Regs 14(1) and 14(2) WTR provide that when a worker’s employment is
terminated during the course of his leave year, and on the termination date the
worker has taken a lesser proportion of his annual entitlement than the proportion
to which he is entitled under Regs 13 and 13A, the employer shall make a
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