United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS M ANDERSON (Advocate) Peninsula Business Services Ltd Stamford House 361-365 Chapel Street Manchester M3 5JY


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in relation to an appeal from a decision of an Industrial Tribunal Chairman sitting alone at Truro. His decision was promulgated on 30 May 1997. By that decision, he dismissed the Applicant's claim that she had been wrongly dismissed but he held that she was entitled to certain claims under her contract of employment, amounting to £18,806. The employers appeal.

Before we consider the subject matter of this appeal, there is a jurisdiction point which has to be taken by this court. The power of the Industrial Tribunal to determine matters relating to contract is covered by Section 3 of the Industrial Tribunal Act 1996. The powers of the Employment Appeal Tribunals to hear appeals in relation to such matters is governed by Section 21 of the Act. Unhappily, the list of statutes which empower the Employment Appeal Tribunal to hear appeals does not include appeals relating to matters under the Industrial Tribunals Acts. Accordingly, it seems to this Tribunal, that we have no jurisdiction to hear appeals in relation to matters relating to contracts and breaches of contract. But notwithstanding that, we feel it would be helpful to the parties were we to give a view about the subject-matter of this appeal, pending the hearing of a test case relating to our jurisdiction.

Shortly the facts are that Ms Milano joined the Appellants on 5 October 1995. There was no single contractual document which incorporated all the terms and conditions of her employment. There was a letter from the Managing Director dated 11 August 1995 which set out certain proposals. Ms Milano commenced her employment, as I have indicated, on 5 October and it appears that her agreed salary as at that date was £30,000 per annum. She commenced employment on terms proposed in that letter and for that salary.

The Company however, was in financial difficulties. The other Directors were paid salary by the month in such a way that the annual figure that they were receiving was something like £22,500. So far as the balance was concerned, the policy was that, at the end of the financial year, the Directors would get together and consider whether the Company could afford to pay them the balance of their salary.

What happened in this particular case is that there was a dispute between Ms Milano and the Managing Director of the Company as to whether she was entitled to have access to the factory floor of the Respondent company. This resulted in her resigning her position on 9 July 1996. Thereafter, she made a claim for wrongful dismissal and for a whole range of expenses which I will come to in a minute. The Industrial Tribunal Chairman found that she had not been wrongfully dismissed and focused his attention on considering the expenses she was claiming pursuant to her contract.

Miss Anderson, who has appeared on behalf of the employers, has made plain that their appeal relates to two specific items only, of the amount awarded by the Chairman. The two specific amounts relate to Ms Milano's claims for compensation for her loss of holiday entitlement and also, for certain items relating to her relocation expenses.

Coming to the question of the holiday entitlement first; the Industrial Tribunal Chairman was faced with the fact that there was no specific contractual document which set out Ms Milano's entitlement. The Chairman found that a draft contract was sent by Mr Aldous, a Director of the Company, in March 1996 to Ms Milano for her consideration. It is clear that the Chairman considered that that draft suggested the appropriate holiday entitlement would be 25 days. In view of the fact that there were no contractual documents specifically stating what her entitlement would be the Chairman had to infer from all the facts of the case and all the contractual documents referred to, what would be regarded as a reasonable holiday entitlement Surely, it was expected by the employers that Ms Milano would be entitled to some holidays. The Chairman of the Tribunal concluded that her overall entitlement for the year was 25 days. This could reasonably be inferred from the fact that that was what was being proposed by Mr Aldous in his draft of March 1996.

Miss Anderson addressed us on the basis that there was no mention in any document produced by the employers of the holiday entitlement being 25 days. The only reference to that entitlement was in a draft prepared by Ms Milano herself. Our reading of the Chairman's decision is that that was not the case. When this was put to Miss Anderson, she retreated (if I may say so) from the ground of appeal she had filed in this case and said that it was not so much the holiday entitlement of 25 days she was now disputing, but her client's entitlement to the balance of that holiday entitlement. Ms Milano was claiming 14.75 days for holiday pay and, as a result of that, Miss Anderson has applied for an amendment of her grounds of appeal. In any event, she asks what is the point of law in issue here; it would seem to be a pure question of fact based upon the findings of the Industrial Tribunal Chairman. As to whether Miss Anderson should be allowed leave to amend her grounds of appeal, is something I leave over for a moment.

The next part of the claim which is challenged by the employers, is Ms Milano's claim for relocation expenses. What was proposed in the letter of 11 August and in the draft in March, was that her expenses would be subject to inspection and consideration by the Company Auditor. There is no suggestion that Ms Milano ever subjected her claim for relocation expenses to the Company Auditor. There were two particular items amongst the relocation expenses that are challenged. The first is the early redemption interest that Ms Milano paid to the Cheltenham and Gloucester Building Society, because she sold her Surrey home in order to move to a new home in Cornwall, in fulfilment of the terms of her contract with the employers.

The second relocation expense which the Respondents challenge is a Surveyor's fee she paid in respect of her Cornish home. Miss Anderson has accepted that she is not relying upon the contractual term, the literal terms of the contract, which require these expenses to be submitted to the Company Auditor. She says the issue is whether the expenses were reasonable and this, she says, is an issue it was appropriate the Auditor should consider and not the Industrial Tribunal. We draw attention to the fact that, in considering these items, the Industrial Tribunal Chairman had himself posed the same question, namely whether these expenses were reasonable and appropriate as relocation expenses. We consider that, whether decided by the Chairman or the Auditor, what is reasonable is still only a question of fact. Miss Anderson accepted that there did not appear to be any point of law arising on this issue, but that it was a question of fact for the Industrial Tribunal in the absence of a finding by the Auditor.

If we thought we had jurisdiction, we would dismiss this appeal at this preliminary stage. Matters being as they are, we make the following order, namely that this hearing be adjourned pending the decision by this Tribunal as to whether it has jurisdiction to hear contract claims under the Industrial Tribunal Act 1996. If it is found that it has jurisdiction, we direct that this appeal be re-listed for a further preliminary hearing.