In Industry & Commerce Maintenance v Briffa, Mr Briffa was given one week’s notice of termination. The letter stated that Mr Briffa was not, under the terms of his contract required to work his notice and that he should take any unused holiday in his last week for which he would be paid.
Mr Briffa’s acceptance of the terms and conditions of his employment was evidenced by his signature on the contract dated 5 June 2005. Mr Briffa was also made aware of a variation to a contractual term requiring individuals when they are not required to work, upon receiving a notice, to regard themselves as being on holiday during the notice period. This variation was posted to all employees on 4 July 2005.
Once Mr Briffa’s employment terminated on 17 August 2007, he submitted a claim at the Employment Tribunal for outstanding holiday pay. The Respondent resisted the claim, relying on the contractual variation. The employment tribunal accepted that whilst the variation was a term of the contract, it fell foul of Regulation 15 of the Working Time Regulations 1998 (WTR) and concluded that Mr Briffa was entitled to four days outstanding pay. The Respondents appealed.
The EAT upheld the appeal. The EAT found that the tribunal had failed to recognise that Regulation 15 could be varied or dis-applied by a relevant agreement. The EAT found that since the variation was in writing it was held to be legally enforceable and therefore was a relevant agreement within the meaning of Regulation 2. Consequently, the Respondent was not obligated to give notice in the manner prescribed under Regulation 15.
In conclusion, the EAT confirmed that the policy behind the WTR is to “ensure that workers take sufficient holiday with pay”. In this case it was decided that “the purpose behind the Regulations, implementing the Working Time Directive had been fulfilled in this case”.
Tags: Add new tag, Regulation 15, Regulation 2, Relevant agreement, Working Time Regulations
