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New EAT Decisions

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Bamsey v Albion Engineering (HHJ Ansell, 27/3/03) --------------------------------------------------

Authority for the proposition that, when calculating holiday pay under the Working Time Regulations 1998, an employer should exclude the value of over time which is not contractually guaranteed, even if the employee habitually works the overtime.

This decision is an example of statutory construction at its most polished level, and is worth reading just to appreciate the difficulty of some of the issues faced when construing conflicting UK and EC law. Leave has been given to appeal to the Court of Appeal.

This case deals with the definition of redundancy. The Glamorgan Holiday Hotel, due to a fall-off in business, sought to impose a unilateral variation to all workers' contracts, reducing the number of working weeks in the year from 52 to 42. Most employees accepted the new terms; seven did not and= were dismissed. They claimed redundancy payments.

The EAT upheld the tribunal's decision that they were not redundant within the meaning of s139 of the Employment Rights Act 1996. There was no diminution in the need for employees to carry out work of a particular kind; the = same number of employees were still needed, even if they were needed for fewer weeks in the year. Accordingly they were not redundant and could not claim a redundancy payment.