United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS


 


JUDGE PETER CLARK: Mr Devine, the Applicant before the Manchester Industrial Tribunal, was employed by the Respondent from 18 September 1991 until his dismissal on 5 February 1996.

On 29 April 1996 he presented a complaint to the Industrial Tribunal alleging:

1. Unfair dismissal by way of redundancy.

2. A shortfall in redundancy monies due to him.

3. Reference under section 11 of the Employment Protection (Consolidation) Act 1978. That was a claim that he had not received itemised pay statements as required under section 8 of that Act.

The substantive hearing of the complaint is currently listed to be heard on 13 - 14 January 1997. There has, meanwhile, been considerable interlocutory activity before the Industrial Tribunal, leading to one appeal by the Applicant (EAT/1170/96) which went to a preliminary hearing before the Employment Appeal Tribunal, (Morison J presiding) on 29 October 1996. We have seen the judgment given on that occasion; the matter then raised, concerning a complaint of conflict of interest by the Applicant against the Respondent's Solicitors, has no bearing on this second appeal which is before us today.

We pick up the chronology on 31 October 1996 when a full Industrial Tribunal sitting at Manchester under the chairmanship of Miss A.F.W. Woolley ordered that the substantive hearing, then listed to begin that day, be postponed until 13/14 January 1997. In the course of Extended Reasons for that order dated 5 November 1996 the Tribunal record at paragraph 5:

"5. ... The respondents agree to send copies of itemised pay statements for the last year of employment to the applicant. Counsel [for the Respondent] indicated that the respondents' case is that itemised pay statements were given to the applicant. ..."

On 22 November 1996 the Applicant wrote to the Tribunal complaining that although a period of 14 days had been mentioned at the hearing as a reasonable time for the Respondent to provide copies of the itemised pay statements, which they said existed for the last year of the employment, he still had not received them.

On 28 November the Tribunal replied to the Applicant indicating that the Chairman would consider making an order for inspection of the copy itemised pay statements which the Respondent had agreed to produce at the hearing held on 31 October, once they had had an opportunity to make representations.

On the same day the Tribunal wrote to the Respondent, inviting representations as to why an order should not be made and those representations were to be received within 7 days.

On 2 December the Respondent's Solicitors wrote to the Applicant referring to the exchange of correspondence between him and the Tribunal. That letter does not deal with the production of itemised pay statements at all.

On 4 December the Applicant again wrote to the Tribunal asking that the order foreshadowed in its letters dated 28 November now be made.

On 10 December the Tribunal replied to the Applicant refusing to make an order for inspection of the pay statements "for the long period mentioned at the pre-hearing discussion on the basis that you have now shown why they are necessary for the proper determination of the proceedings or to save costs".

Against that refusal the Applicant now appeals by a Notice lodged on 12 December 1996.

Itemised Pay Statements

Section 8 of what is now the Employment Rights Act 1996, formerly section 8 of the Employment Protection (Consolidation) Act 1978 provides that every employee shall have the right to be given by his employer, at times when he is paid, an itemised pay statement in writing giving particulars of the gross amount of wages or salary, the amount of any relevant deductions which are made, and the net pay. The Applicant was paid weekly.

It is not necessary for the employee to ask for such statements during the employment. See Coales v John Wood & Co [1986] ICR 71.

If no such statements are given by the employer the employee may present a complaint to the Industrial Tribunal under section 11 of the Act. On such a complaint, called as a reference in section 11, the Tribunal may, if it is made out, make a declaration to that effect and make an award in relation to any unnotified deductions for a limited period of time.

It follows that where there is an issue, as here, between the parties as to whether or not itemised pay statements have been provided by the employer, the Applicant is prima facie entitled to discovery and inspection of the documents, or copies of documents, upon which the employer relies as showing compliance with the provisions of section 8.

The Appeal

In summary, the Applicant puts his appeal in this way. The Chairman, by her letter dated 28 November, gave the Respondent 7 days in which to show cause why an order should not be made for discovery and inspection of the documents which the Respondent agreed to provide voluntarily at the hearing on 31 October. The Respondent's letter of 2 December discloses no grounds for resisting such an order. However, the Chairman has now refused to make an order. He submits that that decision is wholly illogical, and therefore perverse.

We have received a bundle of correspondence from the Industrial Tribunal which takes the matter no further. In addition, the Respondent has submitted written representations to us. They do not claim to have provided the documents which they agreed to supply on 31 October, but simply refer to the question of itemised pay statements as a "slight side issue". They seek to support the Industrial Tribunal Chairman's order of 10 December on the basis that discovery of the itemised pay statements is not necessary for the determination of the issue of unfair dismissal or otherwise.

Mr Devine has developed his argument further before us today in answer to the Respondent's written representations. He points to the fact that on 17 October 1996 he had delivered by hand a letter to the Tribunal seeking an amendment to his form IT1 by the addition, inter alia, of two letters written by him to the Respondent's Managing Director, Mr Stuart Gray during the employment. One of those letters is dated 7 November 1994. In it, the Applicant complained at that time that he had received wage slips of sorts between 27 September 1991 and 21 May 1993. We have seen purported examples which do not appear to comply with the requirements of section 8. In the following week, in May 1993, he then wrote, he was told in no uncertain terms that he would receive no more wage slips. He now contends that that has remained the position up until his dismissal in February 1996.

On 21 October the Industrial Tribunal granted his application for leave to amend and have therefore, since that time had before them the letter of 7 November 1994. That letter was specifically referred to by the Applicant in paragraph 3 of his letter to the Tribunal dated 4 December 1996.

Far from being a slight side issue, it may be highly material for the Industrial Tribunal to resolve the disputed itemised pay statement reference for this reason.

What prompted the Applicant's letter of 7 November 1994 to Mr Gray was a letter which he had received from the Contributions Agency dated 1 September 1994, informing him that no National Insurance contributions had been made on his behalf for the year ending 5 April 1993, although the employees contributions had been stopped each week, during that year, according to the pay slips which he had received. Subsequently, following his complaint, payments were made by the employer to the Contributions Agency to cover that financial year.

This background suggests, at the least, that the Industrial Tribunal may want to investigate closely the issue of itemised pay statements at the substantive hearing. For that purpose, it seems to us, discovery must take place. Either the Respondent maintains its position that itemised pay statements were issued during the last year of employment, in which case they must produce genuine copies thereof, or it abandons that position, in which case that part of the complaint succeeds.

In our judgment the Chairman's refusal to order discovery on 10 December 1996 "flies in the face of properly informed logic" to borrow a phrase from the collection of descriptions of perversity to be found in the judgment of Mummery J. in Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440, 443. The Applicant has made out his case before us.

Accordingly we shall allow this appeal and, in the exercise of our powers under section 35(1)(a) of the Industrial Tribunal's Act 1996, direct that the Respondent provide for inspection by the Applicant copies of those itemised pay statements which they say were issued to him during his last year of employment.

In the absence of a representative appearing before us on behalf of the Respondent, we further direct, bearing in mind the delay already incurred since 31 October 1996 and the dates fixed for the substantive hearing, that such discovery and inspection should take place on or before 3 January 1997.