United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr S Olanrewaju 94 Newington Green Road London N1 4RG


 


JUDGE PETER CLARK:

1. This appeal first came before a differently constituted division of the Employment Appeal Tribunal on which I sat on 28 April 1999. We refer to the judgement which I gave on that occasion for the background to the appeal.
2. We there identified two potentially arguable points of appeal; specifically in relation to what was said at paragraphs 29 and 37 of the Tribunal's extended reasons promulgated on the 3 September 1998. We further directed that the Appellant lodge draft amended ground of appeal covering those two points, which has been done, and sought the comments of both the Chairman, Mrs Don, and the Respondent. That information is now to hand. This is the resumed preliminary hearing.
3. Paragraph 29. At Paragraph 29 the Tribunal observed that, based on his length of service, the Appellant is entitled to eight weeks pay in lieu of notice on dismissal, but he had received only four weeks pay. The Tribunal expressed the expectation that the outstanding four week's pay would be provided by the Respondent.
4. In her letter of comment on the matters raised in our earlier judgment the Chairman says this.

"Paragraph 29 of the decision clearly states Mr Vytelingum is entitled to a further four weeks wages in lieu of notice".

5. We think it is arguable that the way in which the decision is framed at Paragraph 29 and the order made by the Tribunal that no declaration was made as to the Appellants entitlement to a further four weeks wages, and more particularly no award was made for a specific sum to represent those four weeks wages.
6. We were told on the last occasion, correctly as it transpires, by Mr Olanrewaju on behalf of the Appellant that no payment of the outstanding four weeks pay in lieu of notice had by then been made by the Respondent to the Appellant.
7. Following promulgation of our judgement, we see that under cover of a letter dated 7 June 1999 the Respondent's solicitors, Beachcroft Wansborough, tendered to Mr Olanrewaju a cheque in the sum of £682.37 in respect of four weeks net pay, after deduction of tax and National Insurance, made out in favour of the Appellant.
8. Instead of banking the cheque, Mr Olanrewaju returned it to the Solicitors under cover of a letter dated 9 June 1999. He there said:

"Since the case is in the hands of the Employment Appeal Tribunal, it is wise to let the Appeal (sic) deal with the case before making any payments".

9. The Solicitors replied on 11 June, stating that they would await hearing from Mr Olanrewaju as to when the Appellant would like the cheque. We take it from that letter that the Solicitors are still holding the cheque to the Appellants order.
10. Before us today Mr Olanrewaju contends that the Appellant is entitled to a greater sum than £682.37 representing his outstanding four weeks pay in lieu of notice.
11. He first takes the point that the payment should be made gross rather than net. We are not convinced of that but if one looks at the monthly pay figure set out in the originating application and agreed in the Notice of Appearance of £769.19 it is apparent that, multiplying that by 12 and dividing it by 52 to give the weekly net pay figure, that the figure of £682.37 is slightly short of four weeks net pay on that basis.
12. This is precisely the difficulty that arises where the Tribunal has not properly adjudicated on this issue.
13. We see no alternative in these circumstances but to allow this ground of Appeal to proceed to a full hearing, in the earnest hope and expectation that figures can be agreed between the parties so as to make it unnecessary for further time and expense to be expended in bringing this matter back before the Employment Appeal Tribunal.
14. Paragraph 37: Here, the Employment Appeal Tribunal note that the Appellant may be entitled to unpaid holiday pay and unpaid increments. He was directed to apply to the Payroll Department of the Respondent for those sums allegedly owed to him. Again arguably that is not an adjudication by the Tribunal on the Appellants claims for holiday pay and unpaid increments. A difficulty has arisen as to whether or not those issues were before the Tribunal for adjudication.
15. In Paragraph 5 of the Tribunal's reasons there is a reference to a letter sent by Mr Vytelingum dated 9 April 1998 setting out an application for leave to amend his originating application to add a number of further claims.
16. We have asked today for a copy of that letter and what we have been shown is a letter dated 9 February 1998, date stamped as received by the Employment Tribunal on the 11 February, in which those further grounds of complaint set out at Paragraph 5 are indeed identified.
17. Leaving aside the mystery over the correct date of the letter, we note that there was a claim a breach of contract at item 7, and further the Appellant maintained a claim that he still had outstanding pay awards for the Years 1995-1996 and 1996-1997.
18. It appears that leave was granted by a duty Chairman to amend the originating application to include those among other claims. We have been diverted to some extent by Paragraph 6 of the Tribunal's reasons which refer to a letter from Mr Olanrewaju dated 28 April 1998 raising further claims in respect of which he sought leave to further amend the originating application.
19. The difficulty about that is that at the hearing before Mrs Don's Tribunal, a copy of that letter was on the file, contrary we think to the Chairman's statement at Paragraph 2 of her letter to the Employment Appeal Tribunal dated 18 June 1999.
20. What appears to have happened is that there was no reply from the Tribunal to that letter on the file; we take that from a note taken by the Respondent's Solicitors Representative on that day, a copy of which has been forwarded to us. It is the Respondent's case and we think the position taken by the Chairman that Mr Olanrewaju was asked for the Tribunals reply to his letter of 28 April and he said he was unable to find it. The matter is further complicated today because Mr Olanrewaju tells us that although he could not find the Tribunals reply when first asked for it by Mrs Don he subsequently found it and handed it in to the Tribunal.
21. The effect of that letter, he tells us, is that a Chairman had granted a leave to the Appellant to make the further amendments set out in his letter of the 28 April 1998. The Chairman on the other hand tells us that no such letter was found and that although it is not expressed in Paragraph 6 of the Tribunal's reasons it is implicit there, and the fact that the Application to further amend contained in the letter of the 28 April was not granted at the Hearing.
22. On the face of it that suggests, since those amendments included claims for holiday pay and pay award increments, that the matters mentioned in paragraph 37 were not before the Tribunal; however, looking at the letter of the 9 February 1998 it does appear that a breach of contract of employment claim was raised, as well as a claim for outstanding pay awards for the years 1995-1996, 1996-1997. In those circumstances, it seems to us arguable that the claims referred to at Paragraph 37 of the Reasons were before the Tribunal, if not by the later letter of the 28 April by the earlier letter of the 9 February or query 9 April 1998, and in these circumstances it is arguable that the Tribunal fell into error in not adjudicating on those claims.
23. It is not enough it seems to us for a Tribunal to say, where faced with specific claims, that they hope that the Respondent would deal with any claims sympathetically. It is for the Tribunal to adjudicate on such matters. In these circumstances and unfortunately we feel obliged to formally allow the second ground of appeal also to proceed to a full hearing, again with the hope that the parties will be able to reach terms on this matter as with the first ground of appeal so as to save any further expense and time. If not, then the case will have to be listed for 2 hours Category C. There will be exchange of skeleton arguments 14 days before the date fixed for the full appeal hearing. Any further applications should be made to this Tribunal marked for my attention.