United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED
For the Respondents	THE RESPONDENTS DEBARRED FROM DEFENDING THE APPEAL


 


JUDGE PETER CLARK:

1. The appellant, Mr Mustafa, was employed as a waiter at a restaurant latterly known as "Crazy Horse" in Regents Street, London W.1. The ownership of the restaurant changed from time to time during his employment and the last employer took over in March 1999. On 24th April 1999 the appellant was dismissed without notice. He was then aged 66 years. He consulted the North Islington Law Centre who wrote on his behalf to the employer. There was no response and so an Originating Application was presented on the appellant's behalf to the Employment Tribunal on 23rd July 1999.
2. The respondents were there named as (1) Commercial Leisure Group and (2) Robert Ainsworth. The appellant gave his commencement date of continuous employment as April 1973. He had 26 years service. His basic wage was said to be £100 per week but with variable tips his net average weekly earnings were £341.90. He complained of unfair dismissal, relying on Article 119 (now 141) of the Treaty of Rome to dis-apply the age limit of 65 under s. 109(1) of the Employment Rights Act 1996 ['ERA']. He also claimed pay in lieu of notice, outstanding holiday pay, unlawful deductions from wages and a declaration and compensation in respect of the employer's failure to give written reasons for his dismissal.
3. No appearance was entered by the respondents and the complaint came on for hearing before a tribunal chaired by Mrs T J Mason sitting at London (North) on 14th October 1999. The appellant attended, represented by a Law Centre barrister, Miss Corrigan. The respondents took no part.
4. By a decision with extended reasons promulgated on 26th November 1999 ['the original decision'] the tribunal made the following orders against the second respondent, Mr Ainsworth only; a finding of unfair dismissal and a basic award of £3,000 but no compensatory award, awards for unauthorised deductions and pay in lieu of notice and a declaration and award in respect of the respondents' failure to give written reasons for dismissal.
5. The appellant's representative then did two things. She lodged a Notice of Appeal dated 7th December 1999 against the original decision and also applied to the Employment Tribunal for a review of that decision.
6. The Notice of Appeal took three points:

(1) that the tribunal ought to have made orders against both respondents, Commercial Leisure Group and Robert Ainsworth.

(2) they should have made a maximum basic award of £6,600, based on a weekly wage of £341.90.

(3) they were wrong not to make any compensatory award for unfair dismissal.

7. That appeal came on for preliminary hearing before a division presided over by Judge Collins on 1st March 2000. The appellant was then represented by counsel, Mr Basu, under the ELAAS pro bono scheme. All three grounds of appeal were permitted to proceed to a full hearing.
8. The respondents continued to take no part and on 18th July 2000 the Registrar made an order debarring them from defending the appeal.
9. The review application came on for hearing before the Mason tribunal on 15th March 2000. Neither side appeared. By a decision dated 28th March 2000 the tribunal reviewed their original decision ['the review decision'] and:

(1) directed that the orders made on the first occasion be against both respondents. That disposes of the first ground of appeal before us and

(2) declined to alter the original decision insofar as no compensatory award for unfair dismissal was made. At paragraph 5 of their reasons for the review decision they pointed out that no evidence was led or submissions made on the question of whether a compensatory award should be made. Further, since no evidence on that issue was led at the review hearing the tribunal confirmed that part of the original decision.

We should add that the tribunal was not, on the face of the review decision reasons, asked to review the basic award made in the original decision.

10. In these circumstances the matter comes before us for a full appeal hearing today. The appellant has not attended. He has not given any explanation as to why he is not here. He is ex-directory and it has been impossible for the staff to contact him. The respondents, as we have indicated, have been debarred from defending and do not appear. Accordingly we have considered the appeal on the papers.
11. There are now two live issues:

(1) the question of the basic award; and

(2) whether the tribunal was wrong in law to make no compensatory award for unfair dismissal.

12. Before dealing with those issues we should make this observation. The tribunal in this case accepted the submission that the age of qualification for unfair dismissal protection contained in s.109(1) ERA is incompatible with the Treaty of Rome as being indirectly discriminatory on grounds of sex. We are not required to consider that finding, there being no argument to the contrary either her or below. We therefore, like Judge Collins at the preliminary hearing, express no view on a point which we understand is currently under consideration in another case by a different division presided over by the President, Lindsay J.

The basic award

13. S.119 ERA provides that a basic award shall be calculated in the same way as a redundancy payment, that is a multiplier based on age and length of service up to a maximum of 30 weeks pay, subject to a maximum of £220 per week at the date of dismissal in this case.
14. A week's pay is to be calculated in accordance with ss. 220 to 229 ERA.
15. It is now clear that an employee's remuneration for the purposes of s.221 ERA, on which the calculation is based, excludes tips where these are not channelled directly through the employer. Palmanor v Cedron [1978] ICR 1008; cf Tsoukka v Potomac Restaurants Ltd [1968] 3 ITR 259 and Nerva v RL & G Ltd [1996] IRLR 461 CA.
16. In the present case there was no evidence before the tribunal and no finding to the effect that part of the appellant's income, which consisted of tips, was distributed by the employer as opposed to either being received directly from the customer by the appellant or being distributed by the waiters among themselves through the tronc system.
17. Accordingly, it seems to us that no error of law is made out in the tribunal's decision to make a basic award on the basis of the appellant's basic pay, that is £100 per week excluding tips.

Compensatory award

18. The appellant had two opportunities to advance a case, by evidence and argument, for a compensatory award - at the original hearing and at the review hearing below. He did neither. In these circumstances it is not open to the appellant to challenge the tribunal's finding on appeal.

Conclusion

19. We shall, in these circumstances, dismiss this appeal.