United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1123_95_2302

Appeal No. EAT/1123/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd February 1996

HIS HONOUR JUDGE P CLARK

MR K M HACK JP

MR N D WILLIS

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EUROSKILL RESOURCE LTD          APPELLANTS

MR N NELLINS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P MEAD

(of Counsel)

Employment Law Appeal Advisory Scheme


 


JUDGE CLARK: The respondent, Mr Nellins, was one of a gang of scaffolders recruited by the appellant employer to work in Holland.

He signed a contract of service dated 3rd April 1995 which provided inter alia by clause 10:

"CONTRACT PENALTY CLAUSE AND NOTICE TERMS

a) The Employees's Contract date can be terminated by the Employer at any day's notice during the first two weeks of employment.

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c) If the Employee terminates his Contract before the Contracts completion date, the Company with deduct £500.00 from the Employee's final pay, to cover embarkation, disembarkation and administration expenses."

It was agreed that the employment would commence on 4th April 1995 and last for approximately two months.

He commenced work in Holland with the gang on 4th April 1995. His last day of work was Saturday, 15th April 1995.

When he received his final payment cheque £500.00 had been deducted by the appellants, purportedly under Clause 10(c) of the contract. He complained to an Industrial Tribunal that such a deduction was unlawful.

The claim came before a Chairman, Mr J Hollow, sitting alone at the Reading Industrial Tribunal on 1st September 1995.

The appellant did not attend, but submitted written representations. The Chairman upheld the complaint.

Mr Mead on behalf of the appellant takes a single point in this appeal, namely that the penalty clause in Clause 10(c) is an agreed term allowing the appellant to lawfully deduct the sum of £500.00 from the final wages. Without considering whether or not this is a penalty which is unenforceable under the ordinary rules of contract, we think that there is a fatal objection to this argument.

Clause 10(c) is triggered where the employee terminates his contract before the contract's completion date. This contract does not contain a completion date. It is expressed to be "for approximately two months". Just as a notice of termination of employment cannot be effective in the absence of a clear effective date of termination, see Morton Sundour Fabrics Ltd v Shaw [1966] " KIR 1, so in our judgment Clause 10(c) is ineffective absent a contractual completion date.

In these circumstances we conclude that this appeal raises no arguable point of law and must be dismissed.