United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS HEAL (Of Counsel) ELAAS


 


MR JUSTICE LINDSAY: We have before us, as a preliminary matter, the appeal of Mr De Pascalis in a case in which he was said to be the employer and in which Mr Antonio Delgado was the employee. The matter came before the Chairperson, Mrs J Corcoran, sitting alone. Her decision was promulgated on 17 October 1996.

What was decided was that there had been no breach of contract in failing to pay the Applicant, Mr Delgado, in lieu of notice, but that there was an unlawful deduction of wages within the meaning of Section 13 of the 1996 Act, and there was an award in Mr Delgado's favour for £333.30.

The Industrial Tribunal, by the Chairman sitting alone, had held there to be an implied term that Mr Delgado was entitled to three weeks' holiday pay a year. What was said on that subject was this:

"5. Having considered all the evidence I therefore find that there was an implied term in the applicant's terms and conditions, that he was entitled to 3 weeks' holiday a year;"...

There are formal grounds of appeal but some grounds have been abandoned. Ms Heal for Mr De Pascalis seeks to raise another ground by way of amended grounds of appeal. It seems to us appropriate that the matter should go forward and that Mr De Pascalis must strike out those grounds which are no longer asserted and add that new ground, which we give leave to be added.

Briefly, to mention the subject matter, the Appellant, Mr De Pascalis, says that it was not he that was Mr Delgado's employer. He does not leave it just generally like that but says that for one period it was a company called Cromarpost Ltd and thereafter a Mrs Brancaccio. We have no means of determining the rights and wrongs of that ground because the reasons of the Chairman make no mention of the subject at all. We cannot tell, for example, whether there was no evidence led on the point, whether there was evidence led on it but that it was supplanted by other evidence, or whether there has been some shortcoming in the sense that the Chairperson should have referred to it but has failed to do so. The decisions are quite silent.

For that reason, that ground, which is one of the grounds that is still pursued, will require the Chairperson's notes and we give the necessary direction to that end. That is one point. Another is the implied term point which, as we have indicated, was relied upon by the Chairperson. The route to an implied term is far from easy and Ms Heal has drawn our attention to Morley & Heritage [1993] IRLR 400.

Mr De Pascalis's case is that on the very day of the hearing Mr Delgado produced three letters. Two at least of those three letters were said to be from persons who had been offered jobs by Mr De Pascalis, jobs in which Mr De Pascalis had expressly mentioned that there should be three weeks holiday pay a year. Mr De Pascalis said that he wished to challenge those letters but was refused cross-examination on the subject: in effect, dressing-up his complaint a little more legalistically, he is saying that either the letters should have been refused and not entertained whatsoever by the Chairperson, or, if they were to be admitted by the Chairperson, should have been admitted on terms that they could be cross-examined upon in the sense that their authors should be required to attend and subject themselves to cross-examination. But how far did the Chairperson rely upon those letters, if at all? Again, it is a subject which we cannot answer because the weight to be given them by the Chairman is not mentioned.

It does seems to us that if the Chairperson accepted the letters (and even as to that we cannot be sure), then if the Chairperson was minded to refuse cross-examination of the authors of the letters, then it should clearly have been stated in the reasons that they had been put out of the Chairperson's mind for whatever reason they had been put out. There is a logical difficulty further, (no doubt it will be addressed at the full hearing) which is that, ordinarily speaking, one cannot prove that the one employee has amongst his terms an implied term by proving that persons in a similar role had a corresponding express term amongst their terms. That plainly leads to the argument that, where holiday pay was intended to be agreed, then Mr De Pascalis made it express. The more examples of express agreements on a given point that one produces, the harder it is to imply such a term. That is general contract law, but, one is bound to say, that in the employment world a rather different attitude sometimes obtains and that will be a matter for investigation at the hearing.

On balance we see it as appropriate that the matter should go to a full hearing, that the Chairperson's notes should be produced, as we have indicated, and that the grounds of appeal should be amended by striking out those subjects which are not to be pursued and added to by way of the amended grounds of appeal which have been handed in and for which we give leave.