United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTIN WESTGATE (of Counsel) Messrs Ole Hansen and Partners Solicitors 153 Kennington Road London SE11 6SF


 


MR JUSTICE MAURICE KAY: This appeal is listed before us today for a preliminary hearing. Our task is simply to decide whether the points raised or any of them are arguable so as to justify a full hearing. Having listened to the very careful submissions of Mr Westgate, we are persuaded that the matter is suitable to proceed to a full hearing. We of course do not express any views as to the outcome of that full hearing.

1. Very briefly, we think the points made by Mr Westgate in relation to the legal basis of the appellant's occupation of the flat above the respondents' surgery are arguable having regard to the terms in which the Employment Tribunal expressed itself in paragraph 23 of its Decision, where they at one stage appear to have accepted that the arrangement for the occupation of that accommodation was initially contractual.
2. We also think that the point made about the appellant's contractual position as to sick pay is an arguable point. We take that view because in paragraph 23 the Employment Tribunal appear to have approached the matter on an "either/or" basis. The second of the two possibilities, namely that the appellant was entitled to the same contractual terms that had been extended to other employees even though she had declined them, does not seem to us on the face of it to be the only alternative to there being no agreement at all. As we understand it, employees at this place of work had received sick pay on some basis prior to the introduction of the new contracts, which had been accepted by all the employees except the appellant. There is an argument that there was a contractual entitlement to sick pay on some basis prior to that introduction which would have extended to all employees including the appellant. It may, as Mr Westgate submits, have been on the basis of reasonableness. Be that as it may, we are only concerned with whether this point is arguable, and we have come to the conclusion that it is.
3. Those two points, the accommodation and sick pay, have a knock-on affect on the findings in relation to unfair dismissal. But there is in relation to that the further point advanced by Mr Westgate to the effect that in the relevant parts of the decision, paragraphs 26 to 30, the Employment Tribunal does not specifically set out the implied term of trust and confidence and appears to have taken into consideration a lack of malevolence on the part of the respondents. We think the points raised by Mr Westgate on that point fall into the category of what it is arguable as well.
4. There is a further point raised in the grounds of appeal. One of the issues before the tribunal was whether or not the appellant had been given itemised pay statements in accordance with s.8 of the Employment Rights Act 1996. The conclusion of the tribunal was that she had not been. The tribunal did not go on expressly to consider whether, in those circumstances, they ought, in their discretion, to have awarded her compensation for that omission. We do not think that there is anything of substance in what Mr Westgate contends about that lack of an award of compensation. It will, of course, remain open to the appellant, in the course of her appeal, to refer to the finding of paragraph 25 in her favour, namely that there was a failure to give itemised pay statements, but we do not think that the omission specifically to refer to compensation for that failure is something which raises an arguable point of law.
5. Therefore, we give permission for the matter to proceed to a full hearing. There will be no order for Chairman's Notes of Evidence but if the respondents come to the view that they are necessary, they have liberty to make an application within 14 days to this tribunal for further consideration of that point. The case is to be listed for half a day, Category B. The usual direction as to skeleton arguments