Perkins v Southern Cross Healthcare Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Stanley Burnton,Lord Justice Jackson |
| Judgment Date | 16 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1442 |
| Docket Number | Case No: A2/2010/1125 |
| Date | 16 December 2010 |
| Court | Court of Appeal (Civil Division) |
[2010] EWCA Civ 1442
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Hand QC, Mr D Chadwick and Mr D Welch)
Before: Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Stanley Burnton
and
Lord Justice Jackson
Case No: A2/2010/1125
REF NO: UKEAT/0276/09/JOJ
Mr David Reade QC (instructed by Abbey Legal Protection) for the Appellant
Ms Naomi Ling (instructed by Thompsons Solicitors) for the Respondent
Hearing date: 24 November 2010
Lord Justice Maurice Kay:
This appeal is concerned with the jurisdiction of employment tribunals. They have a remarkable history. They were first established for the rather mundane purpose of hearing appeals from assessments of industrial training levies pursuant to the Industrial Training Act 1964. Their subsequent and rapid jurisdictional growth embraced disputes about redundancy payments under the Redundancy Payments Act 1965, unfair dismissal under the Industrial Relations Act 1971 and the early discrimination legislation (Equal Pay Act 1970, Sex Discrimination Act 1975 and Race Relations Act 1976). Additional categories of discrimination followed in and since the 1990s and other jurisdictional extensions have resulted from European initiatives. Employment tribunals now deal with well over 100,000 cases per year and their jurisdiction relates to over fifty categories of employment rights. However, they are not all-purpose tribunals with jurisdiction to deal with any and every workplace dispute. They are statutory bodies and their jurisdiction is limited by the statutes which govern them.
As long ago as 1971, the Industrial Relations Act conferred upon the relevant Minister the power to make regulations to extend the jurisdiction of the employment tribunals to hear claims based on breach of contract. That gauntlet was not picked up until 1994 when the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 enabled the tribunals to hear specified breach of contract cases. The provision is now enshrined in the Employment Tribunals Act 1996, section 3, which also contains an up-to-date rule-making power which facilitates further extensions. However the current position is that the breach of contract jurisdiction is confined to claims arising or outstanding on the termination of employment. It is not available during the subsistence of the contract.
The present case is concerned with contractual holiday entitlements and with the statutory right of an employee to be provided with a written statement of particulars of employment (Employment Rights Act 1996, sections 1 and 4), including “any terms and conditions relating to … entitlement to holidays” (section 1(4)(d)(i)). Employment tribunals undoubtedly have jurisdiction in relation to some matters concerning written statements of particulars (sections 11 and 12). The question we have to consider is whether they have jurisdiction to construe contractual terms and conditions contained or referred to in written statements of particulars.
The facts
The respondents are employed by the appellant. In each case they were first employed by the appellant's predecessor, Ashbourne Homes Limited (later Ashbourne Limited). They commenced employment on different dates between May 1994 and February 1995. Mr Perkins and Mr Johnson were employed pursuant to contracts of employment with express provisions regarding holiday entitlement – a basic entitlement of 20 working days per year, with an increase for long service of up to three additional days. In late 2000, Mr Perkins and Mr Johnson were issued with written statements of their terms and conditions of employment. Holiday entitlement was stated to be 4 working weeks per year with an uplift for long service up to a maximum of one working week. It is common ground that the contractual position of Mrs Johnson was the same.
In 2006, the appellant took over the business previously run by Ashbourne pursuant to a transfer to which the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applied. On 13 June 2006, the appellant wrote letters to the respondents stating that they were each entitled to “4 weeks annual leave per annum”. On 5 July 2006 the appellant issued the respondents with a document which stated:
“This amendment form constitutes part of the written statement that the Employer is required to provide in terms of the Employment Rights Act 1996.”
As regards holidays, it stated:
“Your annual leave entitlement will be 4 weeks plus your long service leave accrued to date which is 5 days. This is frozen and protected.”
In 2007, amendments were made to the Working Time Regulations 1998. Regulation 13 continued to provide for an entitlement to four weeks’ annual leave. Regulation 13A now provides an additional entitlement. For present purposes, it provided for 4 days additional leave for leave years beginning before 1 April 2009 and 8 additional days for leave years beginning after that date. It seems that the uplift related to the way in which statutory bank holidays were previously treated in this country.
The amendment led the appellant to circulate a memorandum on 30 September 2007. It stated:
“From 1 October 2007, you must ensure that all Staff Members with a paid annual holiday of less than 4.8 weeks receive an increase to 4.8 weeks, pro rata for part-time Staff Members … Staff members currently entitled to 4 weeks annual leave, and who get paid days off on all eight public holidays, will not be entitled to any increase.”
A further memorandum was circulated on 30 September 2008 to reflect the additional days to take effect after 1 April 2009. It effectively increased statutory entitlement to 28 days.
The essential dispute between the parties is whether the increase in the statutory entitlement pursuant to the Working Time Regulations, which applies to all employees regardless of length of service, continues to attract the long-service uplift which was described as “frozen and protected” in the document of 5 July 2006. Put another way, the respondents claim to be contractually entitled to their five days’ long service uplift on top of their increased statutory entitlement of 28 days. They claim to retain the differential which they enjoyed as against employees who do not have long service but who, in the appellant's case, now have the same 28 day entitlement as the respondents.
The statutory provisions
It is necessary to set out the material provisions of the Employment Rights Act 1996. Section 1 provides:
“(1) Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment.
…
(3) The statement shall contain particulars of –
(a) the name of the employer and employee,
(b) the date when the employment began, and
(c) the date on which the employee's period of continuous employment began …
(4) The statement shall also contain particulars, as at a specific date not more than seven days before the statement … is given, of –
(a) the scale or rate of remuneration
…
(d) any terms and conditions relating to any of the following –
(i) entitlement to holidays, including public holidays, and holiday pay …”
It is apparent that particulars of some matters are mandatory, while others are only required if they are a matter of contractual provision. Holiday entitlement is in the latter category as a result of the word “any”. If there is a change in any of the listed matters, the employer is required to give to the employee a written statement containing particulars of the change (section 4).
Enforcement is dealt with in sections 11 and 12. Section 12 provides:
“(1) Where an employer does not give an employee a statement as required by section 1, 4 or 8 (either because he gives him no statement or because the statement he gives does not comply with what is required), the employee may require a reference to be made to an employment tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the section concerned.
(2) Where –
(a) a statement purporting to be a statement under section 1 or 4 … has been given to an employee, and
(b) a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part, either the employer or the employee may require the question to be referred to and determined by an employment tribunal …”
Section 12 provides for the powers of the employment tribunal. It states:
“(1) Where, on a reference under section 11(1), an employment tribunal determines particulars as being those which ought to have been included or referred to in a statement given under section 1 or 4, the employer shall be deemed to have given to the employee a statement in which those particulars were included, or referred to, as specified in the decision of the tribunal.
(2) On determining a reference under section 11(2) relating to a statement purporting to be a statement under section 1 or 4, an employment tribunal may –
(a) confirm the particulars as included or referred to in the statement given by the employer,
(b) amend those particulars, or
(c) substitute other particulars for them, as the tribunal may determine to be appropriate and the statement shall be deemed to have been given by...
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