UKSC and JCPC electronic bundle sample - The Supreme Court

1502
Marshalls Clay Products ltdv Caulfield (CA)
[2004j1CR
Court ofAppeal
MarshalIs Clay Products Ltdv Caulfield and others
Oarkev Frank Staddon Ltd
A
2004 Jan 27;
April.8
[2.004] EWCACiv 42.2.
Judge, LawsLJJ and Charles J
B
Employment- Working time provisions - Paid annual leave - Employee's hourly
rate of pay including element of holiday pay - Whether void - Whether
Employment Appeal Tribunal bound Iry Court of Session decision - Working
Time Regulations L998 (SI L998!L833!, reg L6(L!IJ)' - Council Directive
93!Lo4!EC, art7'
In two unrelated cases employees made claims for payment in respect of their
annual leave entitlement pursuant to regulation 16(1) of the Working Time
Regulations 1998. Inthe first case the employees' contracts ofemployment provided
for the payment of an hourly rate increased by a specified amount to include paid
holidays both for normal working and overtime. An employment tribunal held that
the arrangement was a payment which replaced entitlement to take paid leave, in
breach of regulation I3(9)(b). and was therefore void under regulation 35(1). The
employment tribunal in the second case held that the hourly rates of pay in the
applicant's contract of employment included an element in respect of holiday pay
which was not unlawful and which the employer was entitled to set off under
regulation r6(5). On appeal by the employer in the first case and by the employee in
the second case the Employment Appeal Tribunal held that such rolled-up holiday
entitlement was permitted under the Working Time Regulations 1998 if the contract
provided for a basic wage or rate topped up by a specific sum or percentage in respect
ofholiday pay, and it allowed. the employer's appeal in the first case and remitted the
second case to the employment tribunal to determine whether the contract satisfied
that condition.
On appeal by the employees in the first case and by the employer in the second
case-
Held, that article 7 of the Working Time Directive 93/to4fEC by its language
imposed no obligation to pay the worker in respect ofhis leave at the time the leave
was taken, and the positio~ could be no different under any provision contained in
the Working Time Regulations 1998, which had no vires beyond the implementation
of the Directive; that any other view depended on an implicit conclusion that a
contractual provision for "rolled-up" holiday pay made its enjoyment sufficiently
difficult or problematic that it would fall to be treated as repugnant to article 7,
whereas there was no reason why workers generally should not manage rolled-up
holiday pay perfectly sensibly; but that, given that the Court of Session had taken an
opposite view, it could not be said that the point was aete clair, and, accordingly, the
question would be referred to the Court ofJustice for a preliminary ruling (post paras
19,4°,43-47,5°,51).
R (Broadcasting, Entertainment, Cinematographic ad Theatre Union) f)
Secretary of State for Trade and Industry (Case e-L73199) ['OOL] ICR Its', RCJ
distinguished.
c
D
E
F
G
H
1 Working Time Regu1ations :1998,reg 13(9): see post, para :19.
Reg 16{tlls)' see post, pam t9.
Reg 35(Il: sce poat,para :19·
2. Caunci Directive 93/I04!EC, art 7: see post, para 18.
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