United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS SALLY ROBERTSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE J McMULLEN QC

1. This is an appeal from a Decision with Extended Reasons given by Mr M. Homfray-Davies in Liverpool, sitting alone in an unlawful deduction of wages case, pursuant to ERA 1996 section 13(2). Mrs Storey appeared for herself and the Respondent was represented by a solicitor.
2. The Decision deals with two issues, one of which is no longer live. At a hearing on 25 May 2001, the Chairman decided to consider separately the claim made by the Applicant about her appraisal box marking and the fate of that on her transfer from the Benefits Agency to the Ministry of Defence.
3. The system in place for pay was that Mrs Storey was evaluated and appraised in July 1999. She was given a box B grading at the high end of the range, based on her performance for the year ended July 1999, on the basis of which she would be entitled to a higher rate of pay from the Benefits Agency for the ensuing year.
4. Two things happened. On 1 November 1999, the Applicant transferred to the Ministry of Defence where different arrangements apply for the calculation of pay. The Ministry has in place detailed regulations for dealing with people who enter into its service between review dates, whether afresh, or by way of transfer from elsewhere within the public service.
5. Some of these provisions were extant before the Chairman at his hearing, see for example, (page 32 of the bundle) paragraph 4.2.1 "Transfer between departments of agencies" and page 48, a letter indicating the procedure and practice within the MOD. The Chairman recorded that, with the consent of the parties, the Applicant's claim would be adjourned so that the Respondent could investigate and produce to the Applicant and the Tribunal all relevant documents and regulations, and, he hoped, pay the Applicant any difference that was due.
6. That is how the matter was left. Written submissions were sent in but they were blind, in that Mrs Storey did not see the submissions made by the Ministry of Defence and complains that had she seen the submissions and the documents attached, she would have made further submissions herself, particularly in relation to paragraphs 6, 8 and 9 of the Respondent's submissions, and certain documents attached to it.
7. Before us today, Ms Robertson, assisting the Applicant under the ELAAS scheme, has presented a forceful argument based on natural justice, and on authority. That is that the Chairman failed to give the parties the opportunity to comment on each other's closing written submissions. In so doing, it failed to follow the procedure set out in Barking & Dagenham London Borough -v- Oguko [2000] IRLR 179 EAT. We agree that there is substance in that point and that matter should proceed therefore to a full hearing before the EAT.
8. Further points are taken about the procedure in that it is submitted that the Chairman did not consider whether to resume the hearing in the light of the submissions, or alternatively, was wrong to adjourn the hearing and put the matter over for written submissions. We, however, consider that, provided the procedure set out in the above authority is followed, it is a matter for the discretion of the Chairman to decide whether to resume a contested hearing or to deal with the matter on the papers. One or other should have been done so that there could have been full public ventilation of Mrs Storey's submissions, in the light of the employer's submissions, which would have been in that sequence, had the hearing carried on, in accordance with the normal procedure.
9. Ms Robertson has also submitted that the Chairman failed to direct himself properly on the statute, in that he took a narrow view of the requirement for pay to be properly payable, confining himself in paragraphs 3 and 4 to a review of regulations, whereas a review of all of the documentation in its context, read as a whole, together with the express treatment of the Applicant as a transferee by the Ministry of Defence, would have required a broader approach such as is required by section 13(2) of the Employment Rights Act. We consider that there is merit in that submission as a matter of construction and against the facts relating to custom and practice which the Applicant wanted to assert, but which she was unable to do, in the light of the submission made by the employer.
10. As part of her claim the Applicant raised a subsidiary alternative point, based upon the calculation of any money due to her, should her claim succeed. Broadly speaking, it is to reflect the fact that she went thirteen months between awards, rather than twelve months, because there are different review dates in the Benefits Agency and in the Ministry.
11. No criticism can be made of the Chairman for failing to deal with that point, since it only arose if her claim succeeded, as Mrs Storey expressly advanced it. There is, therefore, an unsatisfactory position because if this matter is heard by the Appeal Tribunal at a full hearing, it will be without any Reasons given by the Chairman, in respect of the alternative claim. It will therefore be for the Appeal Tribunal to decide whether to remit that matter if it forms the view that Mrs Storey's claim succeeds on the merits itself.
12. Those matters, therefore, contained within paragraphs 1, 3 and 5 of the document submitted to us this morning, will go forward to a full hearing. Perhaps Ms Robertson would be kind enough to draft that with her manuscript amendments put in proper form, and this will therefore be the basis of the hearing before the full Tribunal.
13. We reject the contention in paragraph 4 that the Tribunal Chairman failed to exercise his discretion under section 4(5) properly, or at all, by continuing to sit on the case which had been listed before him, quite properly as a Chairman alone case.
14. The fact that there may be disputes of fact arising from such a claim does not automatically require it to be heard by a full Tribunal, and we dismiss the criticism of the constitution of the Tribunal. In this case it was quite proper for the Chairman to hear the case and to adjourn it, and there is no breach of section 4(5), even in the light of Sogbetun -v- Hackney London Borough Council [1998] IRLR 676.

Now Mrs Storey has done some further work herself which is impressive, but there are problems in dealing with some of the acronyms. Can we have a detailed glossary of the terms and full reference to all the documents because you have handed to us, and I will hand it back to you now, the extract. So put into a bundle please, the relevant documents upon which reliance is now placed, and a copy of the title page for each of those, so that the Appeal Tribunal will know what it is handling.

Mr Willis with his usual pragmatic approach invites the Ministry to consider the position carefully because there are going to be a lot of costs involved. If you are right on your first point, it will go back to a Chairman and then this issue will be litigated again, and it may well be that there is not a substantial difference between box B and box C at the Ministry. Having seen the additional documents that you have produced, it appears to us from our cursory look that there is quite a strong case for Mrs Storey. The MOD are not here to listen to this, but we have given them, as Mr Willis put it, a nudge.