Employment Cases Update

Driver v Air India Ltd [2011] EWCA Civ 986

Date published: 14/08/2011

Additional judgment, following [2011] EWCA Civ 830, concerning quantum of the award.

For the background to this judgment see the earlier judgment - Driver v Air India Ltd [2011] EWCA Civ 830

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Case No: A2/2010/1919

Neutral Citation Number: [2011] EWCA Civ 986

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

HIS HONOUR JUDGE SEYMOUR

HQ08X01806

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12/08/2011

Before :

LORD JUSTICE MUMMERY

LORD JUSTICE RIX

and

LORD JUSTICE LONGMORE

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Between :

DRIVER (Appellant / Claimant)

- and -

AIR INDIA LTD (Respondent / Defendant)

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Mr Brian Dye (instructed by Zaiwalla & Co Solicitors) for the Appellant

Mr Jonathan Cohen (instructed by Morgan Walker) for the Respondent

Hearing dates : Friday 4th February 2011

And further written submissions of 11th and 18th February 2011

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Judgment

Judgment on Costs (Judgment No2) :

Final quantum decision

1. There remains the final question of settling the quantum for which Mr Driver should recover judgment in this litigation.

2. Although the essential parameters for arriving at this figure were provided in our first judgments (the "main judgment"), we have allowed the parties a further opportunity to address us on paper by way of submissions as to the figures of Mr Driver's claim. Mr Driver has put forward submissions and schedules which reflect his pleaded particulars of claim and the decisions reached in our judgments. Air India has not responded in substance, although it has been given an extension of time in which to do so, and although our judgment was distributed in draft on 15 July and handed down on 19 July 2011.

3. Our decision on quantum is as follows.

(a) Car allowance:

4. This is at the rate of £100 per month from September 2001 to June 2006 inclusive (para 109 of the main judgment). That is £5,800.

(b) Telephone expenses:

5. This is at the rate of £31 per month from September 2001 to June 2006 inclusive (para 110 of the main judgment). That is £1798.

(c) Shift Allowance:

6. This is at the rate of £61.37 per week from 1 January 2003 and at the rate of £65.75 from 1 July 2004 (paras 98/103 of the main judgment). That is 78 weeks @ £61.37 = £4786.86 and 104 weeks @ £65.75 = £6838, giving a total of £11,624.86.

(d) Overtime

7. This is payable on hours worked above 37.5 hours per week under the first contract, and, within the discretion of Air India, on hours worked above 48 hours per week under the second contract. We find that, in the light of Mr Thulasidas' decision, the discretion would have been exercised by Air India in Mr Driver's favour, if the local decision maker (for some of that time Mr Joseph and/or Mr Balsaraf) had been acting rationally. Mr Joseph and Mr Balsaraf did in fact certify Mr Driver's timesheets down to the end of November 2006. Mr Driver claims overtime under the first contract from 1 January 2002 to 30 June 2006, and under the second contract from 1 July 2006 to 31 December 2006. Mr Driver claims overtime at the basic overtime rate of 1 and a half times the normal hourly rate, viz at £19.26 per hour. (See main judgment at paras 5, 96/97, 111 and 113/116.)

8. We have considered the time sheets and schedules made available to us, and find overtime earned as follows, payable either as overtime or as damages in lieu of overtime:

2002: £8,243.28

2003: 11,690.82

2004: 11,478.96

2005: 14,423.73

2006: 7,954.38 (under the first contract, down to 30 June)

2006: 4,054.23 (under the second contract, to end 2006).

9. This gives a total of £57,845.40.

10. Only the calculation under the second contract has given us any difficulty, because Mr Driver's schedules and calculations have failed to observe that there is no entitlement to overtime up to 48 hours per week. We have therefore recalculated November and December 2006 overtime claims at 72.5 hours rather than 123.5 hours, or 59% of the hours claimed. We have applied the same percentage to the total hours claimed in respect of July to October 2006, which has the effect of reducing the hours claimed from 234.1 hours to 138 hours. This is somewhat rough and ready, but we think that any error is likely to have been eliminated by the repetitive nature of the claim and the exercise.

11. The total claims: We therefore find Mr Driver's claim to be made good in the total sum of £77,068.26 and we give judgment in that sum in favour of Mr Driver.

12. Interest: Discretionary interest must be added to that claim. We have already said that we would need to be persuaded that the rates should be other than at 8% up to 1 September 2008, and at 5% thereafter. No one has sought to persuade us otherwise.

13. Mr Driver has, however, sought to recover interest from each date at which any item in his claim ought to have been paid. We do not think that this is a satisfactory or appropriate way in which to proceed. We do think, however, that at latest by soon after the time when Mr Driver left his employment with Air India in January 2007, which is itself more than a full year after Mr Thulasidas' decision in his favour in December 2005, Air India should have resolved all these claims. We therefore award interest on the judgment sum at the simple rate of 8% from 1 February 2007 to 31 August 2008, and at 5% from 1 September 2008 down to the date of our judgment and order herein on 19 July 2011. Thereafter the judgment rate applies.