Mr J Goodhand and Others v Felixstowe Dock and Railway Company: 3303591/2019 and Others
| Jurisdiction | England & Wales |
| Judgment Date | 17 March 2023 |
| Date | 17 March 2023 |
| Published date | 29 March 2023 |
| Court | Employment Tribunal |
| Subject Matter | Working Time Regulations |
| Citation | 3303591/2019 and Others |
Case number: 3303591/2019 & others (as on attached schedule)
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EMPLOYMENT TRIBUNALS
Claimant: Mr Jonathan Goodhand & others
Respondent: Felixstowe Dock and Railway Company
Heard at: Bury St Edmunds On: 2 – 14 December 2022
Before: Employment Judge Laidler (sitting alone)
Representatives:
For the represented claimants: Ms N Ling, Counsel
For the respondent: Mr C Jeans KC
Mr A Edge
RESERVED JUDGMENT
1. Voluntary overtime is in principle to be included within the calculation of a
‘week’s pay’ for some of the test claimants.
2. The test claimants whose overtime was sufficiently regular and settled for the
voluntary overtime to be included are – Bowers, Cable, Double, Fenn, Fidgett
and Humphreys but not Da Costa, Craig, Dagnall, Fenn, Frost, Loftus,
Rhodda and Symes.
3. HGP should be included in the calculation of the holiday pay of Craig, Frost,
Da Costa, Dagnall and Rhodda (Cable not pursuing his claim for such at this
Hearing and reserving his position)
4. The appropriate ‘reference period’ for the calculation of the holiday pay in
these proceedings is 52 weeks.
Case number: 3303591/2019 & others (as on attached schedule)
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5. These conclusions will apply only to the 4 week Regulation 13 WTR leave and
not to Regulation 13A.
REASONS
Procedural History
1. The claims of Mr Turley (who subsequently withdrew) and Mr Goodhand were
received on 1 February 2019 bringing a claim of unauthorised deductions and
holiday pay in respect of voluntary overtime only.
2. On 20 September 2019 claims were presented in respect of Nathan Bruce and
741 other claimants of deductions in respect of overtime payments and holiday
pay. Claims in respect of all the test claimants were included in this multiple.
3. On 23 December 2019 claims were brought by Mr Garrett and 83 others.
4. On 13 December 2019 an application to amend was made to include claims for
HGP (higher grade pay) to also be reflected within holiday pay. This application
was granted on 18 February 2020.
5. Further applications to amend the claims to permit deductions post dating the
presentation of the claim form to be included in these proceedings were made
and granted (pursuant to the approach in Prakash v Wolverhampton
UKEAT/0140/06 and the Presidential Guidance on such amendments.
6. Further particulars on the HGP claims were given on 30 August 2022.
Test claimants
7. The selection of the test claimants and the difficulties that arose have been set
out in previous case management discussion summaries following hearings on
22 July and 5 October 2022. The 13 who have been selected by the parties
are to test the content, scope and application of the principles by which statutory
holiday pay is to be computed. They have also been chosen as a sample from
the claimant group numbering over 800. They are not “lead” cases under Rule
36 but the resolution of these 13 should assist in resolving the remainder by
agreement, once all appeals are spent.
8. The 13 individuals ultimately selected: –
Mr Double has been throughout his employment an engineer (E)
Case number: 3303591/2019 & others (as on attached schedule)
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Mrs Loftus has been throughout her employment, staff (S)
Mrs Craig was until May 2019 an operative (O) when she became an S on
promotion
The other 10 have been throughout employment operatives (O)
The Issues
9. The following represents the agreed list of issues for determination by this
tribunal. As has been recorded in it this tribunal is not being asked at the present
hearing to consider questions of quantification, the amounts of the claimants’
contractual entitlements to pay, questions as to the periods of leave to which
the 4 week and 1.6 weeks entitlements are respectively to be allocated or
questions as to whether deductions form a “series”. It is understood that the
appeal in Chief Constable for NI v Agnew [2019] IRLR 782 which will have a
bearing on such matters is shortly to be heard by the Supreme Court.
Introduction
1. The Claimants contend that their entitlement to holiday pay pursuant to the Working
Time Regulations 1998 (“WTR”) includes pay they received, over a representative time period,
in respect of:
1.1. Voluntary Overtime. This claim is pursued by each of the Claimants; and
1.2. Higher Grade Pay. This claim is pursued by the Claimants highlighted in
yellow in the table appended at Schedule 1 of the List of Issues dated 1
December 2022 (including Test Claimants JC Craig and EG Frost) and also by
Test Claimants CJ Cable, SJ Da Costa, N Dagnall and GC Rhodda.
2. The Claimants contend that the omission by the Respondent to include such sums in
their holiday pay constitutes an unlawful deduction of wages, pursuant to section 13
Employment Rights Act 1996 (“ERA”).
3. The issues relating to each of the heads of claim identified above at paragraph 1 are
addressed separately below.
4. Sample Claimants have been selected for consideration at a hearing, scheduled for 2
December to 15 December 2022.
Issues Currently Reserved for Argument at the Appropriate Appellate Level
5. The issues listed at paragraphs 6 below are (subject to the emergence of fresh authority
prior to the hearing scheduled as above) reserved for argument at the appropriate appellate
level.
6. To the extent that EU law may be relevant to the questions which follow:
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