United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S JONES (of Counsel) Instructed By: Messrs Short Richardson & Forth Solicitors 4 Mosley Street Newcastle-upon-Tyne NE1 1SR


 


MR JUSTICE CHARLES: This appeal comes before us today by way of preliminary hearing pursuant to our Practice Direction. Our task is therefore to consider whether or not it raises points of law that are reasonably arguable.

1. The parties to the appeal are St Regis Paper Company Limited, the Appellant before us and the Respondent before the Employment Tribunal and a Mrs Compton, the Applicant before the Employment Tribunal and the Respondent to the Appeal. The appeal is against parts of a decision of an Employment Tribunal sitting at Bedford on 7 and 8 February 2000 and in Chambers for discussion on 9 February 2000. The Extended Reasons for the decision were sent to the parties on 23 February. The decision reached by the Employment Tribunal is set out at the beginning of the Extended Reasons in eight numbered paragraphs (at pages 4 to 5 of the bundle) in the following terms:

"1. The Applicant was unfairly dismissed by the Respondents on 30th April 1999.

2. The Applicant has suffered an unauthorised deduction from her wages contrary to section

13 Employment Rights Act 1996.

3. The Applicant had been discriminated against under section 1 Sex Discrimination Act 1975.

4. The Respondents are in breach of the Equal Pay Act 1970.

5. The Respondents are in breach of Regulation 4 of the Working Time Regulations 1998.

6. The question of the alleged breach of section 13 Employment Rights (Resolution) Act

1998 will be considered by the Tribunal at the remedy hearing-

7. (a) It is just and equitable for the Tribunal to consider the Applicant's allegation of victimisation under section 4(1) Sex Discrimination Act 1975

(b) The Applicant has not been subjected to victimisation under section 4(1) Sex Discrimination Act 1975.

8. The question of remedy is adjourned to a date to be fixed."

2. The appeal is against the findings of the Employment Tribunal in respect of the Applicant's claims for (1) unlawful deduction from wages (2) breach of the Working Time Regulations 1998 and (3) breach of the Equal Pay Act 1970; that is the findings in paragraphs 2, 4 and 5.
3. The Notice of Appeal has been professionally drafted and today we had the benefit of representation on behalf of the Appellant company by Counsel who put in a Skeleton Argument.
4. The first claim dealt with by Counsel was the claim in respect of the Working Time Regulations. As to that claim he raises in the Skeleton Argument a jurisdictional point which is in addition to the points raised in paragraph 6.2 of the Notice of Appeal. He points out that the Tribunal did consider the jurisdictional point and that appears from their Extended Reasons. In our judgment the grounds raised in respect of this point do raise points of law that are reasonably arguable.
5. We will give leave to the Appellant to amend the Notice of Appeal to add the jurisdictional point and direct that that amendment is to be lodged within 14 days from today. We will also give leave to the Respondent to apply to vary or discharge that grant of leave either at the full hearing or, if so advised, before it. We give that leave because the Respondent is not present today. We would suggest that if she wishes to challenge that amendment the sensible time to do so would be at the full hearing, rather than at a preliminary hearing.
6. The Notice of Appeal relates to two other claims.
7. Turning next to the grounds raised in paragraph 6.3 of the Notice of Appeal which relate to the finding that there was a breach of the Equal Pay Act. We have spent a little time on this argument today. It seems to us that, perhaps the time we have spent demonstrates of itself that there are points that can be reasonably argued in respect of these grounds. We will therefore simply permit the appeal to go forward on the grounds specified in paragraph 6.3 of the Notice of Appeal as well and say no more about them at this stage. The merits of those arguments will, of course, be a matter for the full Tribunal hearing of the appeal.
8. The first matter raised in the Notice of Appeal relates to the other claim which is the subject of the appeal. Paragraph 6.1 of the Notice of Appeal is in the following terms:

"6. The grounds upon which this appeal is brought are that the Employment Tribunal erred in law in that:-

6.1 In concluding that the Appellant had made unlawful deductions from the Respondent's salary:-

6.1.1. It failed to make any, alternatively any sufficient findings in relation to the Appellant's case that the Respondent had agreed to accept payment at a rate of £19,000 a year, alternatively to waive any breach;

6.1.2 It failed to take into account a relevant matter, namely the Respondent's letter of 18 August 1997 (a copy of which is attached hereto), which makes it clear that the Respondent accepted that her salary should be paid at a rate of £19,000 a year; alternatively

6.1.3 In the light of the said letter, the tribunal's decision that there were unlawful deductions was not one open to a reasonable tribunal properly instructing itself in law."

9. That refers to a letter dated 18 August 1997 which was annexed to the Notice of Appeal. That letter itself refers to a letter from Mrs Compton dated 16 June and a reply from Mr M. Smith of 7 July. Those letters are referred to in paragraphs 9 (15) and (16) of the Extended Reasons which are in the following terms:

"9 (15) In her letter of 16th June 1997 Mrs Compton says:

'I feel that I am being victimised because I am a woman and that the company is making me feel very vulnerable, this I believe could amount to sexual discrimination and a clear breach of the Equal Pay Act. I realise that my experience is not at the same level as the other two outside sales people, therefore I would not expect, as yet, to be on the same salary. Neither do I believe that they are on a salary as low as £23,000. I am contacting customers who have not seen anybody from St Regis in years and other who have never seen anybody at all. I am building good relationships with all my customers and this will stand the company in good stead for the future. I believe I am worth the £22,000 - £23,000 that I was originally promised.'

(16) In response to the letter of 16th June, Mr Smith wrote to Mrs Compton on 7^th July 1997 asserting that £22,000 'was not approved by me', that her salary 'is in line with similar cases of newly appointed external sales staff within St Regis', and that 'it is not, and never has been, our policy to treat anyone differently because they are female'. Mr Smith said that he was asking Mr Yeoman to carry out a formal review, and to then review her salary again in September. In the meantime Mr Smith awarded Mrs Compton a bonus of £2000 as a one-off payment which 'does not form part of your on-going terms and conditions'."

Paragraphs 9 (17) and (18) of the Extended Reasons continue in the following terms:

"(17) It is the letter of 16th June 1997 that Mrs Compton relies on as being the 'protected act' in her allegation of victimisation. Mr Griffiths accepted that Mrs Compton had made an allegation of discrimination in her letter. His evidence was that the normal practice was for the personnel department to investigate any such allegation. Mr Griffiths accepted that Mr Smith had discussed this letter with him. Mr Griffiths, however, had not investigated the matter. He had taken no further action: he had simply assumed that as he heard no more, the matter had been resolved.

(18) Mrs Compton eventually received her bonus payment with her September salary . She received no further payments of any kind or bonus. She remained on her revised salary of £19,000 per annum, until 1998 when the salary was increased to £20,000."

10. Today we have been helpfully shown the letter of 7 July 1997. That letter is in the following terms

"Dear Agnes,

I have been sent a copy of your letter to Mark Yeoman dated 16th June 1997.

You raise a number of points and also raise some questions which require answering.

I am sure you will accept that your total remuneration has increased quite significantly since you took up this position, including the most recent increase to £19000 p.a.

I am disappointed that you were led to believe that your salary would be automatically increased to £22000 as this was not approved by me. No final figure had been agreed, if it had, it would have been included in the original contract.

On the point you raise about unfair treatment, I can give you the categoric assurance that this is not the case. I have discussed your points with the Divisional Personnel Director and he has assured me that your recent salary progression is in line with similar cases of newly appointed external sales staff within St Regis. It is not, and never has been, our policy to treat anyone differently because they are female.

I would like to assure you that we recognise the contribution you are making and are confident it will bear fruit. I understand and accept the disappointment you detail. I will ask Mark to carry out a formal review of your performance so that we have a record of this. It will then be my intention to review your salary again in September and will take into account this performance review.

On a more positive note, I am pleased to tell you that you will be awarded a bonus payment of £2000 this year. This is an individual payment and does not form part of your on-going terms and conditions. The payment will be included in your August salary payment.

I hope that the above answers your points and that, as you request in your final paragraph, you consider this matter has now been brought to a conclusion."

11. The letter of 18 August is in the following terms:

"Dear Mike,

I refer to your letter dated 7th July '97, in reply to my communication of the 16th June '97 to Mark Yeoman.

The reason for my delay in replying to your letter was simply to wait until the August salaries had been paid and to establish that the increase to which you refer in your letter had been effected.

As you will know by now I have been in contact with Mark, who has subsequently contacted Peter Warren, because this increase was not included in the wages paid to me. You will understand my concern and the reason for writing the previous letter, as every time I am promised something it does not seem to materialise.

I would be most grateful if you could look into this matter personally and ensure that the increase that you refer to in your letter is put into effect immediately and back dated to May as previously promised by Mark Yeoman.

I feel that a cheque should be issued in the amount of the outstanding wages that are due to this point.

Thank you for your expected help in this matter. I look forward to the review that you mention in your letter which is due to take place in September. I hope that at that point the salary structure will then approach that which I was promised before taking this new position."

12. It was submitted to us that the point that was made in respect of this correspondence before the Employment Tribunal is referred to at the end of paragraph 15 of the Extended Reasons. That paragraph is as follows:

"Unauthorised deduction of wages – the law

15 Section 13 Employment Rights Act 1996 provides that an employer shall not make a deduction from wages without authority. A failure to pay wages contractually due amounts to a deduction. Miss Seymour claimed that there had been a failure to pay the wages and bonus contractually agreed. The Respondents denied any such agreement. Mr Wilkinson alleged that in any event, if the claim was of unauthorised deduction of wages, it had been made out of time, and if it were a contract claim Mrs Compton had waived and accepted the breach."

13. In our judgment the legal classification of that claim, and thus whether it is put as waiver, variation or estoppel, does not for present purposes. However it is described it is a claim that is based exclusively on the above mentioned exchange of correspondence. It being asserted on behalf of the Appellant company that the effect of the response to the letter of 7 July by Mrs Compton was that she was agreeing that she would be paid at a rate of £19,000 per year. This point therefore turns exclusively on a view of that correspondence.
14. In our judgment the points advanced by the Appellant company (a) that by her letter of 18 August Mrs Compton was giving up her assertion that it had been agreed that she would be paid between £22,000 and £23,000 and/or (b) that the Appellant company reasonably thought that in that letter that was what she was saying, are hopeless ones.
15. The last paragraph of Mrs Compton's letter is in these terms:

"Thank you for your expected help in this matter. I look forward to the review that you mention in your letter which is due to take place in September. I hope that at that point the salary structure will then approach that which I was promised before taking this new position."

For our part we cannot read into that when it is read alone, or in its context, an acceptance by Mrs Compton that she was agreeing that she would thereafter be paid only £19,000 a year and was giving up her assertion that the company had agreed to pay her £22,000 a year.

16. Accordingly in our judgment the grounds of appeal in paragraph 6.1 of the Notice of Appeal raise no reasonably arguable point of law and we dismiss them.