EAT Mr Gilbert was paid for 44 weeks a year, of which 38 weeks were those in which he was required to work. The issue was whether, as the ET had held, ‘a week’s pay’ fell to be calculated by dividing the annual salary payable monthly to the employees by 52; or whether it fell to be divided by 44.
Held: The EAT allowed the employees’ appeal. The applicable denominator was the number of weeks for which the employee is paid, including weeks of paid holiday entitlement.
Wall J said: ‘Although the contracts of employment in this case are agreed to be annual contracts, we cannot lose sight of the reality, which seems to us to be at the heart of each of these contracts, namely that the Appellants were paid to work for a total of 43 or 44 weeks a year (including holiday periods) and that none of the Appellants was required to work, did work, or were paid to work in the remaining 8/9 weeks of the year. Mr Gilbert’s contract of employment says in terms that he is ’employed in a term-time only capacity for 37 hours a week’. The contract goes on to make it clear that he was paid for 44 weeks a year, and that the actual working year is 38 weeks and 2 days, with the balance of 5 weeks and 3 days being a pro rata payment of annual and public holidays applicable to full time staff. In this context, it is difficult to regard the manner of payment ‘in twelve equal instalments’ as being other than an administrative convenience, and we cannot give it the weight which Mr Cavanagh’s submissions require it to be given.’
Judges:
Wall J
Citations:
[2002] UKEAT 674 – 00 – 1204, EAT/674/00
Links:
Citing:
See Also – Gilbert and others v Barnsley Metropolitan Borough Council EAT 18-Jan-2001
The parties sought to appeal the method of calculation of the notice period in redundancy calculations affecting part time workers in educational establishments: ‘ The employers contended that since the employees were paid by 12 equal monthly . .
Cited by:
Cited – Agard v Westminster Kingsway College CA 20-Oct-2011
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Lists of cited by and citing cases may be incomplete.
Employment
Updated: 14 June 2022; Ref: scu.202719
