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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Addo-Kwabi v London Borough Of Waltham Forest [1996] UKEAT 865_95_1501 (15 January 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/865_95_1501.html
Cite as: [1996] UKEAT 865_95_1501
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At the Tribunal
HIS HONOUR JUDGE C SMITH QC
MR W MORRIS
MISS S M WILSON
JUDGMENT
Revised
APPEARANCES
JUDGE SMITH QC: This is an application by Mrs Addo-Kwabi the Applicant before the Industrial Tribunal and the Appellant before us, for leave for her appeal to proceed to a full hearing against the dismissal of her claim under the Wages Act 1986 against the Respondent, the London Borough of Waltham Forest. I should say straightaway that Mrs Addo-Kwabi has not attended today. We have considered her notice of application and her Notice of Appeal. All three of us have read them with care. We have reminded ourselves that if there is an arguable point of law disclosed on the papers before us, then we should grant leave for the matter to proceed to a full hearing. If there is no arguable point of law, then, and only then, the application should be dismissed.
As is apparent from the decision of the Industrial Tribunal, dated as long ago as 22 September 1994, it emerges clearly that from February 1991 the Appellant/Applicant was employed as a residential care officer by the Council on a temporary basis. It is apparent that that employment was for a 30-hour week pro rata, by reference to a scale where the rate of pay for an employee working a 39-hour week was in fact £8,547 per annum, with £999 London allowance. It was clear that during the course of those temporary contracts she was paid pro rata 30/39ths of that appropriate salary and that her temporary contract was extended a number of times. It is also apparent that in February 1992 she applied for a permanent contract. She was appointed to a permanent position, and sent a letter of appointment, which, standing alone, recorded that she was still working 30 hours, but mistakenly, as the Industrial Tribunal held, deleted references to her being paid pro rata. However, it is clear from the findings of the Industrial Tribunal that she had received an explanatory document setting out the pro rata arrangements and that that would be continued into her permanent contract before she ever attended for interview, and further that she was expressly told, as the Tribunal accepted on the evidence before them, at interview, that she would be entitled to no more and no less than 30/39ths of the relevant scale. The result of that error was that, as the Tribunal found, for about a year she was mistakenly paid the full amount of the salary. That is to say 39/39ths instead of 30/39ths, due to an error in the Finance department. This emerged in April 1993 when she applied to work 35 hours instead of 30 hours. The amount of the overpayment, as the Council contended before the Tribunal it was, was £2,203.34. As one would expect, and as the Tribunal found, meetings followed in an attempt to settle the matter amicably, at which the Industrial Tribunal found that at that time the Appellant/Applicant had accepted that she had been overpaid and offered £40 per month by way of repayment. According to the findings of the Tribunal, her husband wrote acknowledging that money was owed by way of repayment but he suggested only £10 per month by way of repayment. It seems no agreement was reached.
With effect from October 1993 the Respondents' Council began to deduct £68.15 per month from her current salary namely at the rate of 10%. The Industrial Tribunal set out the submissions that were made to it at paragraph 3. It expressed its conclusions at paragraph 3 of a carefully worded statement of reasons. The Industrial Tribunal in our judgment correctly stated that Section 1(5) of the Wages Act permits a deduction to be made exceptionally in respect of any overpayment of wages. The Industrial Tribunal dealt expressly with the contractual position and carefully so in our judgment. It held that it was not appropriate to look at the letter of appointment alone, but that it was proper as a matter of construction of the contract, to consider the oral evidence about what took place at interview, which I have already referred to, and the explanatory document sent in advance of the interview and in addition the acknowledgement made by the Applicant/Appellant. The Industrial Tribunal having considered all that and placed the matter as they put it, in context, found crucially and correctly in our judgment, that at interview the Appellant was told that she would be paid 30/39ths of her salary pro rata and they also found that the position had been further clarified in the explanatory letter.
Accordingly it is implicit from the Industrial Tribunal's decision that the contractual position was clear. Namely that she was only entitled to be paid 30/39ths of the salary. They also pointed out correctly that she was paid monthly and would have soon realised she was being fairly substantially overpaid. The Industrial Tribunal found her to be an intelligent woman who had the assistance of a professionally qualified accountant [her husband]. The Industrial Tribunal held that she had decided to keep quiet about the matter until it came to light, as it did in the circumstances I have already outlined. The Industrial Tribunal concluded, looking at the picture as a whole, that on its true construction she was contracted on terms that she would be paid 30/39ths of the salary and due to a clerical error, she had been mistakenly overpaid about £200 per month.
In our judgment, having looked at the matter carefully, the Industrial Tribunal properly addressed itself to the correct principles of law and found facts as they were entitled to do on the evidence before them. Accordingly, the Industrial Tribunal was, in our judgment, entitled to reach the conclusion that they did namely that the claim under the Wages Act made by the Applicant before them, the Appellant before us, failed. Having considered the matter carefully, we conclude that there is no arguable point on this appeal and accordingly we must dismiss the application.