United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	MR OLIVER HYAMS (of Counsel) Instructed by: Messrs Nash & Co Solicitors Beaumont House Beaumont Park Plymouth Devon PL4 9BD


 


HIS HONOUR JUDGE J McMULLEN QC

1. This is an appeal against the decision a London (South) Employment Tribunal, Chairman Mr A M Snelson, which sat on 9 February 2001. The Applicant was represented by Counsel, the Respondent by the General Manager. We will continue to use the terms 'Applicant' and 'Respondent' as below. The decision with Extended Reasons was sent to parties on 17 July 2001. A Notice of Appeal against was lodged on 24 August 2001. A remedy hearing was conducted and the decision was sent on 26 April 2002. That too was the subject of an appeal.
2. The Applicant's claims for unfair dismissal and breach of contract were well-founded. The Applicant's claim for compensation was calculated on the basis that no deduction was to be applied, pursuant to Polkey v AE Dayton Services Ltd [1988] ICR 142.
3. The Applicant did not cause or contribute to his dismissal and the Respondent was to pay the Applicant agreed sums of £2,118 in respect of his breach of contract claim and £8,808.20 in respect of unfair dismissal.
4. The remedy decision went through a number of procedural stages until the EAT, Pugsley J and members, decided on 25 November 2002 that the Respondent had not shown cause as to why it had not attended and gave 21 days to show cause why the appeal should not be dismissed.
5. Pursuant to that Order, the appeal has been dismissed, which leaves us with the substantive issue. That too went through a complex procedural history, having resulted in a judgment of Lindsay J and members, setting up what became the full hearing of this case.
6. Today we have two notes. Our files indicate there has been no communication from the Respondent or its representative since Lindsay J's hearing on 28 June 2002. In a faxed letter sent on the note paper of Brix Leisure Ltd, on 15 January 2003 (yesterday), Mr Merrett, the leading light in the Respondent, said this:

"I refer to [your letter of 6 January] and our telephone conversation of today. As I explained I resigned and sold my interest in the above company as a result of bad health. The owner of the company then became Mr R Harrison.

I have frequently tried to contact him with no success. I did however pass on a message to the manager of the company Mr N Kindness who I expected would contact the court.

I have since learned that the company has gone into liquidation…[and the name of the liquidators is given].

Having no authority I cannot represent the company at tomorrows hearing. I deeply regret the inconvenience to the court. May I respectfully suggest the court addresses future communications to the liquidators noted above."

7. Today Mr Hyams has attended. No-one else has. He invites us to dismiss the appeal because of a default by the Respondent and cleaves to Rule 26 which says:

"…if any party fails to comply with an Order or direction of the Appeal Tribunal, the Tribunal may order that he be debarred from taking any further part in the proceedings, or may make such order as it thinks just."

8. The relevant direction which the Respondent has failed to comply with is to send a Skeleton Argument for the hearing. We think that would be a little harsh without in any way seeking to undermine the direction that a Skeleton Argument be produced by both parties 14 days in advance. We have decided to hear the case.
9. A Skeleton Argument has been produced by Mr Hyams which we have read carefully and it is fair to say summarises the position in the absence of the Respondent to contest it. We will uphold the decision of the Employment Tribunal for the reasons which the Employment Tribunal gave.
10. The reasons are contained in pages 14-24 of the appeal bundle and they are incorporated into our judgment. Two grounds were taken by the Respondent. As to ground 1 the Employment Tribunal concluded that there was no written contract between the parties and that the Respondent had no right to suspend the Applicant without pay. There is no challenge to those findings. It further concluded that there was no implied right to suspend the Applicant without pay. We agree that the words 'without pay' are not used but the implication is to that effect.
11. It was submitted that it would be a fundamental breach of contract wilfully to refuse to pay an employee any less than his or her contractual entitlement (Cantor Fitzgerald International v Callaghan [1999] ICR 639, 649 F-650C). We agree with that submission. Since there was no contractual right to suspend the Applicant without pay the failure to pay him during a suspension was held by the Tribunal to be, correctly, a fundamental breach of his contract of employment.
12. The second ground related to the allegation that the Applicant was guilty of theft. In our judgment it is clear that the Tribunal considered whether or not he was and it did so partly because the Respondent had argued that the Applicant's conduct was repudiatory of his contract, with the result that his claims should not succeed.
13. However, as we read paragraph 6 of the Extended Reasons the Tribunal considered at the liability hearing whether the Applicant was in fact guilty of theft. It was correct to do so because it related both to contributory fault and to a remedy.
14. In our judgment the Tribunal made no error in its approach to the consideration of the breach in this case. The Employment Tribunal was obliged to come to a conclusion on the question whether the Applicant was guilty of theft when deciding whether the Applicant was guilty of contributory fault and therefore, when weighing up whether to award and in which case how much an award.
15. The Tribunal cannot be faulted in that approach and in our judgment the reasons of the Employment Tribunal stand.