Walker v Co-operative Insurance Society

An important point of principle requiring authoritative guidance may justify permission to appeal even where the prospects of success are real but modest. The court may consider the likely practical benefit to the applicant and the costs consequences, but those factors do not prevent permission where the issue has wider importance. On an appeal confined to points of law, a tribunal chairman’s notes are rarely appropriate unless they can assist with a genuine legal issue. Where remuneration is governed by a written contract, an asserted annualised payment basis requires consideration of whether the contract was consensually varied.

Mr Andrew Walker, an insurance agent, claimed four unpaid holiday payments under the Community Directive, the Employment Rights Act 1996 and the Working Time Regulations 1998. The Employment Tribunal sitting at Stratford decided the claim, and the Employment Appeal Tribunal dismissed his appeal by order dated 15 May 2002.

Mr Walker applied to the Court of Appeal for permission to appeal, seeking declaratory and monetary relief. The proposed appeal raised the construction of Regulation 16, including the treatment of commission and possible loss of earning opportunities during leave. The court also considered whether the chairman’s notes should be obtained to challenge a finding about the contractual basis of his remuneration.

1. Permission to appeal. Permission was granted. Lord Justice Pill considered that points of general application and importance arose on the construction of the Working Time Regulations 1998, the underlying statutory purpose and the contractual treatment of remuneration. Although the prospects of success were real, they were not high, and the applicant’s likely financial benefit was small. Those considerations were relevant to costs and practical utility, but did not outweigh the need for authoritative guidance.
2. Lord Justice Chadwick agreed that permission should be granted. He regarded the important point of principle and the desirability of authoritative guidance as a sufficiently compelling reason under CPR 52.3 (6) (b), rather than granting permission because the appeal had a real prospect of success.
3. The proposed appeal involved the meaning of payment in respect of a period of leave under Regulation 16, including whether commission-based remuneration and loss of an opportunity to earn further sums should be reflected in holiday pay. The court did not determine those substantive issues.
4. Chairman’s notes. The application for the Employment Tribunal chairman’s notes was refused. Appeals to the Employment Appeal Tribunal and the Court of Appeal are confined to points of law, and chairman’s notes are rarely relevant or appropriate. The written contract should ordinarily provide the starting point unless evidence establishes a consensual variation. The tribunals had not considered whether the asserted annualised basis of remuneration amounted to such a variation, but the notes could not assist with that legal issue. A renewed application was not excluded if the issue arose later.
5. Order. Permission to appeal was allowed. The application for the chairman’s notes was refused. No decision was made on costs.

• Court of Appeal (Civil Division): Granted permission to appeal and refused the application for the Employment Tribunal chairman’s notes.
• Employment Appeal Tribunal: Dismissed Mr Walker’s appeal by order dated 15 May 2002.
• Employment Tribunal, Stratford: Decided Mr Walker’s holiday-pay claim; the decision was promulgated on 25 September 2001.