Athanasopoulos v The Institute for Orthodox Christian Studies

Holiday-pay claims must be proved by evidence. A schedule of loss and cross-examination do not replace evidence that the employer prevented annual leave or caused recoverable loss. Where that evidence is absent, the tribunal cannot make an award. At the permission stage, an application fails where the proposed grounds have no real prospect of success.

This was an application for permission to appeal from the Employment Appeal Tribunal. After Simler J directed that no further action be taken on the appeal, the applicant obtained an oral hearing before Judge Peter Clark. His application and underlying appeal were dismissed by an order dated 24 September 2014.

The underlying claim arose from the applicant’s dismissal after the respondent’s distance-learning programme was taken down. The Employment Tribunal found gross misconduct and procedural unfairness, but concluded that dismissal would have occurred in any event. The applicant challenged the refusal of holiday pay, an uplift for procedural failures and compensation for loss of statutory protection. The central issue was whether any proposed ground had a real prospect of success.

Disposition. The application for permission to appeal and the request for disclosure of Employment Judge Postle’s notes were refused.

1. Holiday pay. A claim of this nature had to be determined on evidence. The applicant accepted that he had not addressed holiday pay in his witness statement. Its inclusion in a schedule of loss did not prove the claim. Cross-examination, or an attempt to cross-examine the respondent’s witnesses, also took the matter no further. In the absence of evidence that the respondent had prevented the applicant from taking annual leave, there was no evidential basis on which the Employment Tribunal could find the loss proved. The reconsideration decision had properly dealt with the issue.
2. Other grounds. None of the grounds advanced, whether orally or in writing, had any real prospect of success in light of the Employment Tribunal’s findings. The Employment Appeal Tribunal had concluded that an uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 remained discretionary despite failures to comply with the ACAS code, and that the applicant’s conduct justified refusing an uplift. It had also concluded that no loss of statutory protection was suffered because the applicant would have been fairly dismissed four weeks later and that period was de minimis in the context of at least a two-year wait before acquiring protection in new employment. The Court found no basis for interference.
3. Disclosure. The request for the Employment Judge’s notes did not alter the evidential position or provide a basis for permission to appeal.

• Court of Appeal (Civil Division) — [2015] EWCA Civ 1181: refused permission to appeal and refused disclosure of the Employment Judge’s notes.
• Employment Appeal Tribunal — Following a direction by Simler J on 13 June 2014 that no further action be taken because the appeal had no reasonable prospect of success, Judge Peter Clark dismissed the applicant’s application and underlying appeal by order dated 24 September 2014.
• Employment Tribunal — Judgment dated 24 September 2013 found gross misconduct and procedural unfairness, but held that dismissal would have occurred in any event. Reconsideration was refused on 17 October 2013.