United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	In Person
For the Respondents	MISS A MORGAN (of Counsel) Ms Alison Lowton Acting Borough Solicitor London Borough of London Borough of Camden Town Hall, Judd Street London WC1H 9LP


 


JUDGE CLARK

1. This appeal by Mr Jones against a reserved decision of the London (North) Employment Tribunal promulgated with extended reasons on 22 February 1999 came on for ex parte preliminary hearing before a division of Employment Appeal Tribunal on which I sat on 14 July 1999.
2. As appears from the judgment which I gave on that occasion all grounds of appeal were dismissed save for one. It is that single issue which arises for determination before us today. Since this is an inter partes hearing we have heard submissions from Ms Morgan, who appeared below as well as considering a skeleton argument prepared by Mr Gary Morton, who appeared on behalf of the Appellant at the preliminary hearing under the ELAAS pro bono scheme which is relied on by Mr Jones, who has appeared in person today as he did before the Employment Appeal Tribunal.
3. The material facts relevant to the remaining issue in the appeal may be shortly stated. The Employment Tribunal found that the Appellant was continuously employed by the second Respondent from October 1981, until his dismissal by reason of redundancy on 31 August 1997.
4. On 24 September 1997 the first Respondent, London Borough of Camden (Camden) wrote to the Appellant referring to the Teacher's (Compensation for Redundancy and Premature Retirement Regulations 1989), which provides that the teacher's employing authority has a discretion to enhance his statutory redundancy payment by removing the upper earnings limit applicable to a statutory redundancy payment. That letter indicated that Camden chose to exercise their discretion in favour of removing the cap and would calculate the Appellant's redundancy payment on the basis of his actual gross weekly wage, £620.54. However, they treated him as having been continuously employed from 2 May 1984 to 31 August 1997, that is to say 13 completed years of service. In view of his age at dismissal, 61 years, he was entitled, under the statutory scheme, to 1½ weeks pay for each year of service. Thus he received an enhanced redundancy payment of £12,100.53, calculated in this way; 19.5 weeks X £620.54.
5. At the preliminary hearing it was argued, among other points by Mr Morton that the Employment Tribunal had erred in law in failing to award Mr Jones the difference between the enhanced redundancy payment actually paid by Camden, based on continuous service beginning on 2 May 1994 and a payment based on continuous service beginning in October 1981, as the Employment Tribunal found. The shortfall has been calculated at £1,861.62.
6. At paragraph 2 of their extended reasons the Employment Tribunal said this:

"The Applicant had also complained about deductions from pay relating to a discretionary redundancy payment. However, as this did not relate to the statutory redundancy payments scheme and was in any event discretionary it did not appear to the Tribunal that it had jurisdiction, particularly as the Applicant indicated that the reason for this deduction was because the Respondents did not like him and because he rocked the boat about his dismissal and failed to attend an interview for a new job."

7. The question at this full hearing, identified in my judgment at the preliminary hearing, was formulated in this way (transcript page 4(f)).

"Whether or not the Employment Tribunal erred in law in treating the scheme for enhanced redundancy payment as being non-contractual, or at any rate, as one which gave no right to a payment for the purposes of section 13 of the Employment Rights Act 1996."

8. Having now heard the submissions from both parties that issue can be further refined as follows;

Did the Employment Tribunal have jurisdiction to entertain the complaint of unauthorised deductions from wages in respect of the alleged shortfall in the enhanced redundancy payment under section 13 of the 1996 Act, if so, ought they, as a matter of law, to have decided that question in the Appellant's favour. If not,

Did the Appellant raise a claim of breach of contract in respect of the shortfall under the provisions of the Employment Tribunals (Extension of Jurisdiction) Order 1994, and if so, ought that claim to have been resolved in the Appellant's favour as a matter of law?

9. As to the first question, Ms Morgan has referred us to section 27(2)(d), of the 1996 Act which provides that any payment referable to the worker's redundancy is excluded from the definition of wages for the purposes of section 13 of the Act. Mr Jones is unable to provide an answer to that submission. In our judgment it is plainly right.
10. Accordingly we find that the Employment Tribunal was correct to hold that it had no jurisdiction to entertain this claim under section 13 of the Act.
11. As to the question of a breach of contract claim, an issue is now raised before us as to whether Mr Jones took the point below that the discretionary enhanced redundancy payment represented a contractual entitlement.
12. Having heard Mr Jones today, it is quite clear to us that he still has not fully appreciated the distinction between a non-contractual discretionary payment and a contractual entitlement to payment. His argument before us amounts to a claim that he was not permitted to put his case on the length of his continuous employment to the Employment Tribunal. He contends that the relevant period began in 1977. However, he told us in terms that he did not argue that the discretionary payment of enhanced redundancy monies was itself an entitlement under his contract of employment. That accords with what we are told of the proceedings below by Ms Morgan. Paragraph 3 of his particulars of complaint, which should be read with his originating application, on which he relies, does not in our view alter that position.
13. It follows, applying the approach of Court of Appeal, in Jones –v- Governors of Burdett Coutts School (1998) IRLR 521, that the point cannot now be raised for the first time on appeal, particularly where, as Ms Morgan submits, further findings of fact by the Employment Tribunal would be necessary to determine whether the Appellant had a contractual right to an enhanced redundancy payment.
14. In these circumstances we are driven to conclude that there are no grounds in law for interfering with the decision of the Employment Tribunal. Accordingly this appeal must be dismissed.
15. We should add that we reach that conclusion with some reluctance. It is apparent that had Camden appreciated, as the Employment Tribunal found, that the true commencement date of continuous service was October 1981, then, having exercised their discretion to make the enhanced payment based on the Appellant's actual gross weekly wage and period of continuous employment, they would have paid the additional sum amounting to £1,861.82.
16. We have enquired of Ms Morgan today whether in these circumstances Camden are prepared to make good the shortfall to Mr Jones on an ex gratia basis. She has had some difficulty in taking instructions from the relevant Council Department and in these circumstances is unable to give us any assurance that such a payment will be made.
17. We are not a court of morals. Our jurisdiction is limited to correcting errors of law. Nevertheless, we hope that when the matter is considered in the light of the observations we have made in this judgment, Camden will reconsider the position.