Title: Appeal No.
Author: Ola Odunlam
Last saved by: vmartzou
Company: BAILLI

Appeal No.	 EAT/504/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 January 1999
							Judgment delivered on 11 March 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MR W MORRIS
MRS R A VICKERS

MR D I HENDERSON	APPELLANT

HUNTING CONTRACT SERVICES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant | IN PERSON

	MR JUSTICE CHARLES: 	The parties to this appeal are Mr D.I. Henderson (the Applicant and Appellant) and Hunting Contract Services (the Respondents).  

	Mr Henderson appeals against an order of the Industrial Tribunal at Nottingham sitting on 27 January 1998.  The Extended Reasons for that order are dated 28 February.  That order was altered by consent as a result of a review on 1 September 1998.  The Extended Reasons for that review are dated 10 September 1998.

	This appeal came before us on  a preliminary hearing to determine whether it discloses a reasonably arguable point or points or law.

	Mr Henderson appeared in person and provided us with a revised written argument which demonstrates that he has done a fair amount of legal research.  This was confirmed by the oral submissions he made to us.

	We shall deal with the points in which he raised them before us.  As he made clear this does not accord with their order of importance.

Point (1) - the deduction for tax and NI

	Mr Henderson said that the first point was a small one.  He said that after the review the figure stated to be for tax and NI was found to be £930.39 but that figure should be £742.89, and the higher figure also included the sum of  £187.50 referred to in the original Extended Reasons as a loan.  This appears from Mr Henderson’s letter of 19 March 1998 referred to in the Extended Reasons given in respect of the review.  

	This is a problem of mathematics, or description, and does not in our judgment give rise to a reasonably arguable point of law.  However the £187.50 should only be taken into account once in determining what is due to be paid by Mr Henderson to the Respondents or vice versa.  

	A final balance of  £729.80 was ordered to be paid by Mr Henderson on the review hearing.  It can be seen from Mr Henderson’s letter of 19 March 1998, and the calculation in the first Extended Reasons including the figures introduced on the review that the sum of £187.50 has been taken into account twice (i.e. in the sum of £930.39 described as tax and NI in the altered paragraphs (a) of the original decision and 17(b) of the Extended Reasons, and also in paragraph (d) of the original decision and 17(d) of the Extended Reasons).

	Unless the Respondents apply within 14 days to set aside this order we order that the balance payable by Mr Henderson should be altered to the sum of £542.30.

Point (2) - pay for the week-end 22/23 March 1997

	Mr Henderson’s argument here is that he did not give notice until  Monday 24 March and that he is entitled to those days even if he is not entitled to any pay for the period of his notice.

	In our judgment this point does not raise any arguable point of law on this appeal because it is apparent that in calculating days pay in respect of the original order (see paragraph 17(a) of first Extended Reasons), and what was agreed on the review to be due to Mr Henderson (see fifth paragraph of second Extended Reasons) ‘working days’ rather than ‘calendar days’ were taken.

	In our judgment it is now too late for Mr Henderson to assert that as a matter of law his daily pay should be calculated by reference to calendar days and thus include the week-end of 22/23 March.

Point (3) - pay during the period of his notice (i.e. 24 to 31 March)

	Friday 28 and Monday 31 March were Bank Holidays when Mr Henderson told us the Respondents were not open.

	The Tribunal found that Mr Henderson:

“failed to report for work or otherwise make himself available for work after handing in his letter on 24 March”  (paragraph 6 of the first Extended Reasons).  

	The Tribunal also rejected Mr Henderson’s argument that he was able to act in this way during the week starting Monday 24 March because he was entitled to leave.  The Tribunal found that:

“  He was, therefore, in breach of contract and the breach was of such a nature that in my judgement the Respondent was not under any obligation to pay him from 24 March onwards.”(paragraph 6 of first Extended Reasons).

	Mr Henderson argues, and we accept, that his contract remained in existence over the period 24 to 31 March.  This is because the Respondents did not accept his repudiation.  

	However the conclusion of the Tribunal is not based on a rejection of this point, or a finding that the contract did not subsist over that period.  Rather it is based on an application of the approach described by Kirkwood J in his judgment on the first preliminary hearing of this appeal as ‘no work no pay’. This is a well established principle (see for example Harvey on Industrial Relations and Employment Law Vol 1 paragraph B 24).

	Mr Henderson also referred us to, and relied on sections 88, 89 and 91(4) of the Employment Rights Act 1996.  By reference to s 91(4) he said that as the Respondents had not accepted his breach he was entitled to be paid for the period of his notice because s 91(4) only enables the Respondents to refuse to pay once they have accepted the breach.  However in our judgment this argument is flawed because s. 91(4) is concerned with payment during the notice pursuant to ss. 88 or 89 and both of those sections only impose a duty on the employer to pay if the employee is ready willing and able to work during the notice period (see ss. 88(1)(a) and 89(2)).  It follows that the findings of the Tribunal that Mr Henderson was not so willing and able defeat his argument based on these sections.

	Further, in our judgment the fact that Friday 28 to Monday 31 March was the Easter week-end and contained two bank holidays when in the normal course Mr Henderson would not have worked does not have the result that it is reasonably arguable that he retained a right to be paid  for the Bank Holiday Friday and Monday, or the week-end after he had failed to make himself available for work from Monday 24 March.  This because in our judgment the finding of the Tribunal is clearly that Mr Henderson made himself unavailable for work and took the stance that he was never going to work again for the Respondents after Monday 24 March.  Indeed this follows from his failure to make himself available for work from 24 March and his letter dated 23 March in which he told the Respondents he would not be returning after the Easter Break.

Point (4) - the deduction of training costs

	In our judgment to give rise to a reasonably arguable point of law that he should be allowed to pursue on this appeal Mr Henderson has to show that his point that the Tribunal had no jurisdiction to order him to make a payment to the Respondents is reasonably arguable.

	The reason for this is that the first part of the relevant clause in the Training Agreement makes it quite clear that Mr Henderson has to reimburse the Respondents for training costs and Mr Henderson’s arguments in respect of this point relate to the latter part of the relevant clause in the Training Agreement which is the only part of it that refers to the Respondents being able to deduct the amount due from pay.

	Unless Mr Henderson has a reasonable argument on his jurisdiction point this point becomes academic.

	As appears below we have concluded that Mr Henderson does not have a reasonably arguable point of law on his jurisdiction point

	In our judgment Mr Henderson correctly accepted that he could not now raise in these proceedings a point that the relevant clause in the training agreement constituted a penalty.

	We add that if we had not found this point to be academic we are persuaded that it raises a reasonably arguable point of law as to the meaning of the latter part of the clause.  This is a point of construction and thus of law and it seems to us that it can be argued that the latter part of the clause is not clear and in the circumstances of this case did not authorise the deduction that was made.  We would also have allowed Mr Henderson to argue his points under this heading in respect of notice.

Point (5) - the  £187.50 “loan”

	Mr Henderson’s arguments focus on the legality of a deduction from his pay in respect of this sum.  This was not dealt with by the Tribunal.  We accept that there is a reasonably arguable point of law that there was no right to make the deduction pursuant to section 13 of the Employment Rights Act 1996 and that having regard to that section a deduction could not be made by applying the normal rules of set off.

	But again, in our judgment a reasonably arguable point on which this appeal should be allowed to proceed only arises in respect of  this point if Mr Henderson’s jurisdiction point is reasonably arguable.  This is because the Tribunal found that he owed the sum of £187.50, and if it could not be deducted it can be added to the Respondents’ claim.

Point (6) - the award of £200 damages on the counterclaim

	In our judgment the Tribunal did not make any error of law in deciding that Mr Henderson was in breach of contract or in assessing the damages.  It was common ground that Mr Henderson did not give the three months notice that was required under his contract.  So he was in breach of contract even though his repudiatory breach was not accepted until 1 April.  The assessment of damages was in accordance with accepted principles and Mr Henderson’s points as to the evidence do not raise arguable points of law.

Point (7) - the jurisdiction of the Tribunal   

	As we understand it this point was not raised below.  If we had concluded that it raised an arguable point we would have given the Respondents an opportunity to argue that it is now too late to raise it even though it relates to jurisdiction.

	In his Application to the Industrial Tribunal Mr Henderson says that his claim is for “unlawful deduction from wages / breach of contract”.  

	But in advancing this point he asserted that his claim was only for “unlawful deduction from wages” and therefore that:

	(i) 	the Tribunal only had power to order the employer to repay deductions (see s. 24 of the Employment Rights Act 1996),

	(ii)	a counterclaim cannot  be entertained unless the employee has put in an express claim for breach of contract, as to which he relied on the Industrial Tribunals Extension of Jurisdiction (England and Wales) Order paragraph 8, and in any event

	(iii)	the only power of the Tribunal by virtue of s 8 of the Industrial Tribunals Act 1996 is to order the Respondent, not the Applicant, to pay damages and the Industrial Tribunals Extension of Jurisdiction (England and Wales) Order does not affect this although it indicates that there is a power to order one side to pay the other.

	Point (i) depends on points and (ii) and (iii) because unless they are right the Tribunal had power to order Mr Henderson to make payments to the Respondents under what he describes as their counterclaim.

	In our judgment points (ii) and (iii) are plainly wrong and therefore do not raise a reasonably arguable point of law.  The reasons for this are set out below.

	The Industrial Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (the Extension Order) predates the Industrial Tribunals Act 1996 (the 1996 Act), and was made pursuant to provisions of the Employment Protection (Consolidation) Act 1978 (the 1978 Act).  But the relevant provisions of the 1978 Act are now in the 1996 Act (e.g. s. 131(2) of the 1978 Act is now s. 3(2) of the 1996 Act).  We shall therefore like Mr Henderson refer to the 1996 Act.

	Article  1 of the Extension Order defines a “contract claim” by reference to Articles 3 and 4 which in turn refer to what is now s. 3(2) of the 1996 Act.  The  definitions in  Articles 3 and 4 cover respectively Mr Henderson’s claims (whether described as unlawful deduction from wages or breach of contract) and the Respondents’ claims.

	The Respondents’ claims are thus an employer’s contract claim within Articles 4 and 8.  Article 8 is satisfied in respect of this employer’s contract claim.

	On a proper reading of s. 8 of the 1996 Act the reference to the respondent is a reference to the respondent to either and both of (i)  an employee’s contract claim, and (ii)  an employer’s contract claim.  This is because s.8 has to be read with s. 3 of the 1996 Act which by s. 3(1) (formerly s. 131(1) of the 1978 Act) confers power to identify claims that may be brought before an Industrial Tribunal.  The Extension Order identifies such claims and therefore the “proceedings brought by virtue of s. 3” referred to in s. 8.  The claims identified by the Extension Order and thus the “proceedings brought by virtue of s. 3” include an employee’s contract claim and an employer’s contract claim.  The respondents to such claims are respectively the employer and the employee.

	Accordingly although it is a convenient shorthand to refer to an employer’s contract claim as a counterclaim it is in some respects misleading because it is not so dealt with in s. 3 of the 1996 Act and the Extension Order, and it can lead to the error made by Mr Henderson that the respondent referred to  in s. 8 of the 1996 Act is only the employer.

Overall Conclusion

	Apart from the point identified under Point (1) which we have dealt with thereunder we have concluded that this appeal does not raise any reasonably arguable points of law.

	Accordingly we order that (1) unless the Respondents apply within 14 days to set aside this order the balance payable by Mr Henderson should be altered to the sum of £542.30, and (2) save as aforesaid we dismiss this appeal.

© Copyright 1999

EAT/504/98

EAT/504/98
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