Agard v Westminster Kingsway College

For statutory redundancy-pay calculations, a week’s pay is determined by the weeks for which the employee is paid, including paid holiday entitlement. It is not confined to the weeks in which the employee is required actually to work. An employment tribunal’s factual finding on how the contract operated and how pay was made cannot be revisited on appeal merely because the employee disputes it. Appellate intervention requires an error of law, absent evidence, or perversity. Where the tribunal’s findings bring the employment within an earlier authoritative decision, the tribunal is entitled to follow that decision. Permission to appeal may be refused where the proposed appeal has no real prospect of success.

The claimant, a former careers adviser employed by Westminster Kingsway College, received a redundancy payment calculated using a denominator of 45 weeks. That figure comprised 40 weeks actually worked and five weeks of paid holiday entitlement. She contended that the denominator should have been 40, producing a higher payment.

The Employment Tribunal rejected the claim for the additional sum. The Employment Appeal Tribunal refused to allow the appeal to proceed, and permission to appeal was subsequently refused on paper. The renewed application before the Court of Appeal concerned whether the tribunal had erred in law by treating paid holiday weeks as part of the period for which the claimant was paid, and whether its factual findings could be challenged.

1. Permission refused. The proposed appeal had no real prospect of success.
2. The Employment Tribunal had found, on the evidence of the contract and payslips, that the claimant was paid for 40 working weeks and a further five weeks of holiday entitlement. That was a rational finding supported by evidence. It was not open to challenge in the Employment Appeal Tribunal or the Court of Appeal simply because the claimant disputed it.
3. Under section 21 of the Employment Rights Act 1996, an appeal from the Employment Tribunal lay only on an error of law. A factual finding could amount to an error of law where there was no evidence for it or where it was perverse, in the sense that no reasonable tribunal could have made it. Neither ground was established.
4. Once the factual finding was accepted, the case was not materially distinguishable from Gilbert, North and Bellwood v Barnsley MBC. That decision established that the denominator for a week’s pay was the number of weeks for which the employee was paid, including paid holiday entitlement. The correct denominator was therefore 45, not 40.
5. The claimant’s further arguments concerning part-time-worker discrimination and unlawful payment in lieu of minimum holiday entitlement could not assist her. The discrimination point had not been argued below, and the payment-in-lieu point was inconsistent with the facts found.
6. The court also explained the ordinary costs risk of pursuing an unsuccessful Court of Appeal appeal, but made clear that permission was refused because the appeal lacked merit, not to protect the claimant from that risk.

• Court of Appeal (Civil Division) — refused the renewed application for permission to appeal on 20 October 2011.
• Employment Appeal Tribunal — Underhill J directed under rule 3(7) of the Employment Appeal Tribunal Rules 1993 that no further step be taken after the paper sift. On the claimant’s rule 3(10) application, His Honour Judge McMullen QC held that the proposed point was not reasonably arguable.
• Employment Tribunal — Employment Judge Pearl awarded the claimant a redundancy payment of £1,739.04, calculated using a 45-week denominator.