Agard v Westminster Kingsway College

This is a renewed application for permission to appeal against an employment tribunal decision on the calculation of a redundancy payment under section 221 of the Employment Rights Act 1996. The primary legal principle applied is that a "week's pay" for redundancy purposes is to be calculated by reference to the number of weeks for which the employee is paid, which includes weeks of paid holiday entitlement. The Court of Appeal refused permission because the tribunal's factual finding that the claimant was paid for 45 weeks (40 weeks worked plus five weeks paid holiday) was supported by evidence (notably payslips) and was not open to attack on appeal, and because the tribunal's decision was consistent with the earlier EAT authority in Gilbert, North and Bellwood v. Barnsley MBC.

Background and parties: The claimant, Harriet Juliet Agard, a former term-time-only careers adviser employed by Westminster Kingsway College, was awarded a redundancy payment by the employment tribunal. She sought to challenge the method of calculating a "week's pay" under section 221 of the Employment Rights Act 1996.

Nature of the application: The claimant applied for permission to appeal to the Court of Appeal to challenge the employment tribunal's denominator for calculating a week's pay. The dispute turned on whether the annual salary should be divided by 40 (the weeks actually worked) or by 45 (the weeks paid, including five weeks of paid holiday) to produce the relevant week’s pay.

Procedural history: The ET (Employment Judge Pearl) awarded redundancy calculated on a denominator of 45. On paper sift Underhill J (President of the EAT) directed no further step. A rule 3(10) hearing before His Honour Judge McMullen QC refused further progress on the ground the point was not reasonably arguable. A prior application to the Court of Appeal on the papers by Sir Richard Buxton was rejected on 28 March 2011. The renewed oral application to Rimer LJ was refused on 20 October 2011.

Issues framed:

• Whether the correct denominator for calculating a week's pay was 40 (weeks actually worked) or 45 (weeks for which the employee was paid including paid holiday).
• Whether the ET’s factual findings about how pay was calculated were open to challenge as an error of law or as perverse findings of fact.
• Whether the ET decision was consistent with binding EAT authority (Gilbert).

Court's reasoning and conclusion: The Court explained that appeals to the EAT and Court of Appeal require an arguable error of law; findings of fact are not normally reviewable save where unsupported by evidence or perverse. The ET’s analysis of the claimant’s payslips and contractual provisions supported the conclusion that she was paid for 45 weeks a year (40 weeks worked plus paid holiday), and that conclusion aligned with the EAT decision in Gilbert which treats weeks of paid holiday as part of the period for which an employee is paid. The proposed appeal therefore had no real prospect of success and permission to appeal was refused. The court also observed the potential cost consequences for an unsuccessful appeal.

Permission to appeal was refused. The Court held that the employment tribunal was entitled to find that the claimant was paid for 45 weeks a year (including five weeks' paid holiday) and that, as a matter of law and consistent with the EAT decision in Gilbert, the denominator for calculating a "week's pay" includes weeks of paid holiday. The ET's factual findings were supported by evidence and not open to challenge on appeal, so there was no real prospect of success.

Employment Tribunal (Employment Judge Pearl) reserved judgment sent 15 April 2010 awarding a redundancy payment; application to Employment Appeal Tribunal paper sift by Underhill J directing no further step under rule 3(7) (EAT); rule 3(10) hearing before His Honour Judge McMullen QC (appeal no. UKEATPA/0767/10/SM) refusing progress; prior application to the Court of Appeal rejected on the papers by Sir Richard Buxton on 28 March 2011; renewed oral application to Rimer LJ refused on 20 October 2011 ([2011] EWCA Civ 1169).