Crossland v Corps Of Commissionaires Management Ltd

Where an employment contract distinguishes normal hours from additional or overtime hours and provides that holiday entitlement is based on the employee’s average working week, “average” ordinarily means the average hours actually worked over the material period. It is not limited to the contractual normal hours.

For statutory holiday pay under the Working Time Regulations 1998, the Employment Appeal Tribunal is bound by Bamsey v Albon to calculate pay by reference to contractual normal hours where overtime may be worked. Holiday entitlement cannot be replaced by payment during employment. If days treated as holiday are actually worked, the worker remains entitled to those days as leave, or to payment in lieu on termination.

Mr Crossland, a part-time security guard, appealed against an Employment Judge’s determination of his claim for payment in lieu of accrued holiday. His contract specified normal hours of 24 per week, separate provision for overtime and additional shifts, and holiday entitlement of four times his “average working week”.

The Employment Judge calculated statutory holiday pay by reference to the contractual hours and treated two days worked in August 2008 as holiday taken. The appeal concerned whether the contract required calculation by reference to average hours actually worked, whether the Working Time Regulations 1998 required overtime to be included, and whether the two worked days remained outstanding leave.

1. Contractual holiday pay. The appeal succeeded on the contractual construction issue. Clauses 10 and 11 distinguished normal working hours from additional or overtime hours. Clause 12 followed those provisions and expressly based paid holiday entitlement on the employee’s “average working week”. The word “average” therefore retained its ordinary meaning: the average number of hours actually worked per week over the material period. The Employment Judge erred in treating it as referring to 24 normal contractual hours. On the evidence, the relevant average was 45.785 hours per week.
2. Statutory holiday pay. The challenge under the WTR could not succeed. The Tribunal was bound by Bamsey v Albon [2004] EWCA Civ 359, which held that regulation 16, read with section 234 of the Employment Rights Act 1996, required calculation by reference to contractual normal hours rather than contractual hours plus overtime. Bamsey was not distinguishable, and any challenge to its correctness was a matter for another court.
3. Two days worked while treated as holiday. The third ground succeeded. The prohibition on replacing statutory leave by payment, subject to the termination exception, was directed to ensuring that workers actually take proper periods of leave. Payment for work performed on the two days, together with holiday pay, did not discharge the employer’s obligation to grant those days as leave. The reasoning in List Design Group Limited v Douglas & Ors EAT/0966/00 was applied.
4. Disposal. Exercising its power under section 35 of the Employment Tribunals Act 1996, and applying regulation 30(5) of the Working Time Regulations 1998, the Tribunal made an award of £699.22.

• Employment Appeal Tribunal: Allowed the appeal from the Employment Judge’s judgment entered on 4 September 2009. The award was recalculated at £699.22.