United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS J OMAMBALA (of Counsel) Appearing under the ELAAS scheme


 


JUDGE CLARK: This is an appeal by Mr Gary Snooks against a decision of a Chairman, Miss R A Lester, sitting alone at London (South) on 10th January 2000. That decision, with extended reasons, was promulgated on 3rd March 2000.

1. The appellant commenced employment with the respondent, Westminster City Council ['the Council'] in August 1989 as a Housing Benefits Assistant.
2. Unhappily he suffered serious illness causing him to go off sick in March 1998, never to return to work. Whilst absent he received sick pay.
3. In June 1998 he applied for ill-health retirement with entitlement to an immediate pension under the terms of his contract with the Council.
4. No decision had been taken on that application by 1st November 1998 when the part of the Council's undertaking in which he had been employed was contracted out to Capita Business Services Ltd ['Capita'] in circumstances where there was a relevant transfer within the meaning of the TUPE Regulations 1981.
5. Following the transfer Capita continued to pay the appellant sick pay.
6. Meanwhile the appellant pursued his application for early retirement with the Council. Eventually that application was granted in March 1999, but because pension rights do not transfer to the new employer under TUPE, the Council backdated his retirement to 15th September 1998, that is before the relevant transfer date.
7. On 24th June 1999 the appellant, who has been effectively represented throughout by his father, Mr F J Snooks, presented an Originating Application to the Employment Tribunal. Box 1 of the form, requiring a claimant to identify the nature of his complaint was not completed, but reference was there made to a letter attached to the form IT1.
8. The specific claims there set out relate to monies allegedly due to the appellant from the Council in respect of pay in lieu of notice and holiday pay totalling, it was claimed, £4,351. There is also a claim in respect of pension entitlement.
9. By their Notice of Appearance the Council contended that they were in the process of making over payment in respect of holiday pay and pay in lieu to the appellant and intimated, without formally counter-claiming, repayment of salary paid since 15th September 1998 in light of the backdated pension payments which had been made.
10. The Chairman found that the appellant was entitled to nine weeks pay in lieu of notice totalling £3,414.46 and 18.5 days holiday pay which she calculated to be £1,020.53 gross. From that total sum of £4,434.99 she deducted the Council's payment of £4,090.99 in respect of those items, leaving a balance due to the appellant of £344.77.
11. She further held that she had no jurisdiction to deal with the alleged underpayment of pension, such claim being specifically excluded from the definition of wages for the purposes of an unauthorised deductions claim by s.27 of the Employment Rights Act 1996. Nor did she consider any cross-claim by the Council for overpayment of wages, no formal counterclaim having been raised in the proceedings.
12. Following the promulgation of the Chairman's decision Mr Snooks Sr. did two things. First, he applied for a review of that decision by letter dated 28th March, contending that the holiday pay claim had been miscalculated. He argued that the appellant was entitled to 22.5 days, amounting to 4½ weeks at the weekly wages used by the Chairman of £379.38 a total of £1,707.23, as opposed to the figure of £1,020.53 awarded under this head.
13. That application was dismissed by the Chairman by a decision dated 3rd April 2000 on the grounds that it was out of time under Rule 11(4) of the Employment Tribunal Rules of Procedure.
14. Secondly, he caused an appeal to be made to the EAT by a Notice dated 14th April 2000 settled by solicitors.
15. It is that appeal which is now before us for preliminary hearing. Our task is to decide whether or not the appeal raises any arguable point or points of law. In that regard we have been assisted Ms Omambala of Counsel who today appears on behalf of the appellant under the ELAAS pro bono scheme.
16. We had in advance of the hearing a skeleton argument prepared by Mr Snooks Sr., but Ms Omambala has helpfully distilled the points which the appellant seeks to take in this appeal to two.
17. The first is a contention that within the Chairman's reasons the Chairman fell into error by finding at paragraph 6 of those reasons that the effective date of termination of the appellant's employment was 15th September 1998, that being a date used by the Council but one which we are told was not agreed with the appellant.
18. There are circumstances in which the effective date of termination is critical in employment law, for example, where a point is taken on limitation a question may arise as to the effective date of termination in order to decide when the ordinary three month time limit begins to run. However in the present case it seems to us that the effective date of termination was not material to any of the issues which this Chairman had to decide. Plainly it was not relevant to the claim in respect of holiday pay.
19. So far as the other claim of wrongful dismissal is concerned, it makes no difference to the length of notice entitlement whether the effective date of termination is 15th September 1998 or the alternative date now contended for, 31st March 1999. It follows, in our judgment, that in so far as the Chairman may have appeared to have made a finding that the effective date of termination was 15th September 1998, any such finding was not necessary to her decision on the matters arising before her. It follows that such a finding would not give rise to any issue estoppel in any future civil proceedings between these same parties.
20. Secondly, Ms Omambala draws our attention to a complaint contained in Mr Snooks Sr.'s skeleton argument as to the appalling conduct of a Chairman, Mr Lamb. What it comes down to, it seems, is that at an earlier interlocutory hearing before Mr Lamb, that Chairman fixed a date for him to hear the substantive case. That was listed for 10th January 2000. On that day Mr Lamb took another case which prevented him from dealing with Mr Snooks' case, and the case was transferred to another Chairman, Miss Lester.
21. It seems to us that no possible complaint can properly arise. It follows that it is not necessary in our view to give the usual direction for the appellant to file an affidavit setting out that complaint of misconduct. We can see nothing in it.
22. In these circumstances, returning to our task, we are unable to discern any error of law in the Chairman's decision which would require a full inter partes appeal hearing. In these circumstances we must dismiss this appeal at this stage.