United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J CROSFILL (of Counsel) North Islington Law Centre 161 Hornsey Road London N9 6DU


 


JUDGE PETER CLARK: This is an appeal by the applicant, Ms Jimenez, against a decision of the Stratford Industrial Tribunal, dismissing her complaint of unfair dismissal. Her claims of unlawful deductions from her wages and failure to provide an itemised pay statement brought against her former employer, Nelabrook Ltd, the respondent, were upheld. Extended reasons for that decision are dated 26th March 1997.

The appellant was employed as a waitress at the respondent's Speedy Snack Bar from 20th November 1995 until her dismissal on 29th March 1996. It follows that at the effective date of termination of her employment she had less than two years of qualifying service for the purposes of bringing a complaint of unfair dismissal under the Employment Rights Act 1996 ["the Act"].

The background to her dismissal was, so the tribunal found, as follows. She received pay of £95 per week plus tips. She was not given a note of her gross pay and deductions at the start of her employment. In January 1996 she asked Mr Syed of the respondent for her correct tax code. He gave her details of her code and the National Insurance number. Enquiries were then made of the tax office and she was told that they had no record of her being an employee of the respondent or of her having paid any tax. Mr Syed insisted that tax was being paid on her behalf. In March she asked her manager for her proper tax code, he telephoned Mr Syed, and she overheard him saying "What does this woman want - she has only been here for a few months". Shortly thereafter her hours of work were reduced and then she was dismissed. In these circumstances the tribunal held that the principal reason for her dismissal was her requests for the information about her tax.

It was not suggested that the appellant specifically asked for an itemised pay statement as provided for in s.8 of the Act.

She sought to pursue her claim for unfair dismissal on the basis that the principal reason for dismissal was an inadmissible reason, namely that she had asserted a statutory right within the meaning of s. 104(1)(b) of the Act. The Industrial Tribunal rejected the claim, holding that she had not sought an itemised pay statement, and therefore had not asserted a statutory right, no other right having been said to have been infringed.

Nevertheless, the tribunal went on to hold that she had not in fact received an itemised pay statement as required by s. 8, and made a declaration to that effect.

Against the tribunal's decision to dismiss her complaint of unfair dismissal the appellant now appeals. On her behalf Mr Crosfill submits that under s. 104(3) of the Act it is sufficient that the employee, without specifying the right, made it reasonably clear to her employer what the right claimed to have been infringed was. Taking a purposive approach, and looking at the mischief to which s. 104 is directed, he submits that the tribunal ought to have held that the provisions of s. 104 were satisfied when the appellant asked for the tax details in order to ascertain whether tax and National Insurance was being properly paid on her behalf by the respondent to the relevant authorities. He relies particularly on the tribunal's finding of fact at paragraph 8(e) of their reasons, where the tribunal find that Mr Syed believed that she wanted the information so that she could check on whether he was in fact properly accounting for tax and National Insurance. He submits that what she did was sufficient to amount to a claim of the right under s. 8 of the Act to a written itemised pay statement.

It may be said that this Employment Appeal Tribunal took a similar purposive approach in Mennell v Newell &Wright (Transport Contractors) Ltd [1996] IRLR 385. In doing so we fell into error, as the Court of Appeal later held in that same case [1997] IRLR 519. We have heard submissions by Mr Crosfill on that case. It seems to us that the critical point identified in the leading judgment of the Court delivered by Mummery LJ is to be found at paragraphs 28 and 29 of the report. The question that arises in this case as it did in that, is whether the appellant is able to identify any occasion on which she had alleged that her employer had infringed her statutory right under s. 8.

We think that the question is the same in both cases, although the right involved differs. Of course it was not necessary for the appellant in this case to refer in terms to the statutory provision on which she now seeks to rely, namely s. 8 of the Act; but we think it was at the very least incumbent on her to ask for the details which would have been contained in an itemised pay statement. She did not do so on this tribunal's findings of fact. Accordingly she had not asserted a statutory right applying s 104, and in particular, subsection (3) of the that section to the facts of this case. It follows that asserting a statutory right could not be the reason or principal reason for dismissal. In our judgment the Industrial Tribunal reached a correct conclusion in law on the facts of this case. Accordingly, this appeal must be dismissed.