United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	MS D WILSON (the Respondent in person)


 


HIS HONOUR JUDGE BURKE QC

1. This is an appeal by Gary Monaghan Ltd against a decision of the Employment Tribunal sitting at Manchester, chaired by Mr Leahy and sent to the parties on 24 August 2001. In order to understand the limited issues in this appeal it is necessary for us to set out some history.
2. Ms Wilson started employment with the Appellant company on 15 May 2000. It was agreed that she would work on a full-time basis for a 40 hour week at the rate of £320 gross per week. Mr Monaghan, who is obviously the driving force in the Appellant company – for we have not heard of anybody else who governs the affairs of that company apart from Mr Monaghan - told Ms Wilson that he would keep a week in hand, that it to say, her first payment would be made at the end of the second week of her employment. At the end of her second week Mr Monaghan paid Ms Wilson the net equivalent of £320 for her first week's work and continued to keep a week in hand thereafter.
3. Not long after she started, on 8 August, Ms Wilson was told by Mr Monaghan that he needed to cut back his expenses and that, as a result, he wanted her to cut her hours down to part-time hours, working only 3 hours a day. He altered that proposal to 5 hours a day; but Ms Wilson was not happy with that because she could not afford to live on the reduced earnings; and she decided that she had no alternative but to seek another job. She found another job very quickly and told Mr Monaghan that she was going to start that job on the following Monday, 14 August. There was then discussion about what Mr Monaghan, or his company, owed her. She claimed that she was owed, firstly, salary for the week in which she was leaving, amounting to £192, secondly, the week in hand, £320, and thirdly, holiday pay. She claimed that she had become entitled to 4½ days of holiday in the 12 and a part weeks in which she had been working, but she acknowledged that she had taken 2 days of holiday, so that there was 2½ days of holiday pay outstanding to her at the rate of £60 per day making £150.
4. It is not in dispute - and we have taken care to confirm this with Ms Wilson today – that, shortly after that, after a number of discussions, Mr Monaghan agreed that she would be paid the holiday pay plus the £192, but he did not agree that she should be paid the week in hand. He gave her a cheque, which was in fact met, for a sum which, he said, represented in net terms, the £192 plus the £150 for holiday pay. Ms Wilson said that it was insufficient to represent those sums in net terms and was short by £30. She started her claim to the Employment Tribunal claiming what she regarded as outstanding, that is to say, the week in hand, £320 gross, plus the £30 that she had been given short, to use a colloquial expression, in the payment that Mr Monaghan had made her. In other words she was looking for £350 in total. Mr Monaghan did not agree.
5. When the matter came before the Tribunal on the first occasion, on 13 March 2001, the Chairman, sitting alone, found in favour of Ms Wilson and ordered Mr Monaghan (actually on the wording of the decision, in person, rather than through his company, although the company was the Respondent) to pay £350, that is to say £320 for the week in hand and another £30 which was short (as the Chairman put it) in terms of the amount that Mr Monaghan had agreed to pay to her.
6. Mr Monaghan then sought a review. The date of that review, 11 July, was vacated because Mr Monaghan claimed that he was unwell; and it was re-fixed for 26 July. On 26 July Mr Monaghan did not attend, although Ms Wilson did. The Tribunal made 2 decisions. The first decision was that they would permit a review. The second decision was a decision upon that review; by that decision the Tribunal varied the original decision of 13 March and ordered that, this time the company, should pay to Ms Wilson not £350 but £486.76. The additional £136.76 came to be ordered in this way. In the first decision the Chairman had said that there was no entitlement under the Working Time Regulations to holiday pay because Ms Wilson had not worked for 13 weeks. By the review hearing it had been appreciated that since a part week counts as a full week for these purposes she had in fact worked 13 weeks and was therefore entitled to a weeks holiday but had only had 2 days of holiday and thus was entitled to a further 3 days of holiday pay, £136.76 was calculated on that basis. It was presumably intended to be a net sum.
7. Mr Monaghan appealed against that decision. In his Notice of Appeal he made a number of allegations of bias. He complained that the Tribunal had undertaken the review hearing in his absence. He also pointed out that the holiday pay which the Tribunal had added on to the original claim had in fact already been paid. Because he had made an allegation of bias he was asked to swear an affidavit to support it; comments were obtained from the Chairman and matters of that kind. However, when his appeal was listed for a Preliminary Hearing, it having been adjourned from the date on which it was originally listed for that purpose because Mr Monaghan said he was ill, Mr Monaghan did not attend again.
8. The Employment Appeal Tribunal on that day looked at the papers and dismissed all the grounds of appeal put forward by Mr Monaghan, except one. That was as to the award of the £136.76. The order made on that day says that the appeal was to be allowed to proceed to a full hearing on the point in the Notice of Appeal as to the £136.76 holiday pay in accordance with the judgment of the Employment Appeal Tribunal. No one ever asked for a transcript of the judgment given orally on that day and none was ever produced; nor is it now possible to produce one, because if there ever was a tape recording, as there should have been, the tape is no longer available. It is for that reason, because the basis on which the appeal was allowed to proceed to a full hearing was not entirely clear, that the Judge presiding over this division of the Employment Appeal Tribunal today, who happened to be free, was asked by the Judge originally assigned to preside over this division today to take over because he was involved in the Preliminary Hearing and therefore knew what had happened, as indeed, by a coincidence, did one of the Lay Members forming part of this division today.
9. Thus, today we have been dealing with an appeal against the decision of the Tribunal at the review hearing, which Mr Monaghan himself sought, to increase the amount that Mr Monaghan had to pay to Ms Wilson. It has to be said that, to a degree, Mr Monaghan has only himself to blame for that because he did not turn up, but there it is.
10. Ms Wilson has attended today. Again, Mr Monaghan has not appeared. He has not submitted a Skeleton Argument. He has not submitted a bundle. We think it right in the interests of justice, and indeed necessary, that rather that show our displeasure at his failure to comply with the Employment Appeal Tribunal's Practice Direction, although displeasure we undoubtedly feel, we should simply deal with his appeal on the merits as they appear from the papers and from Ms Wilson's helpful submissions.
11. It appears to us to be quite clear that, at least in part, Mr Monaghan's appeal is sound. The reason we say that is this: Ms Wilson accepts that, when Mr Monaghan paid her the cheque which we have described, he was paying her for her holiday pay in addition to her salary for the week she had just worked; and thus she received money for all of the 2½ days of holiday pay which she claimed to be entitled to, less the £30 by which the payment fell short. Ms Wilson also accepts that, on 13 March, the Tribunal added that short payment of £30 to the £320 which the Tribunal ordered Mr Monaghan or his company to pay by way of the week in hand. Thus, Ms Wilson has received the money for 2½ days of holiday pay less £30 and has an order for payment of the remaining £30 together with the £320 (although unhappily so far Mr Monaghan has not paid anything towards that order).
12. Therefore, it is clear to us, and we have explained this to Ms Wilson very carefully, so as to make sure that she understands, and she has accepted that the way we have looked at it is right, that Ms Wilson has in fact either been paid or has obtained an order for all of the 2½ days of holiday pay which she was seeking. She should not have obtained, and the Tribunal should not have made, the order adding on another £136.76 to their original order; in doing so the Tribunal failed to take into account that 2½ days of the 3 days holiday pay due had already been paid.
13. However, Ms Wilson's claim was for only 4½ days holiday, whereas she in fact was entitled to 5 days holiday pay under the Working Time Regulations and the complicated formulae which at that time existed under those Regulations for calculating the amount of holiday due in a case where the employee leaves within a holiday year. Thus, the payments which Ms Wilson had previously received from Mr Monaghan and the order made on 13 March 2001 did not cover one half day of holiday pay: and Ms Wilson was entitled to receive an extra amount at the review hearing but only an amount of £30 in gross terms. We have not tried to reduce the £30 to a net sum; the amount involved is too trivial for it to be worth bothering about.
14. Thus, regrettably, because we have a great deal of sympathy for Ms Wilson, and we have to say, not very much for Mr Monaghan, who does not think it is necessary to attend almost any Tribunal or Employment Appeal Tribunal hearing which concerns this case, we have no alternative but to allow the appeal to the extent that the order for a further payment of £136.76 made on 26 July 2001 is varied and an order for a further payment of £30 is substituted in its place.
15. Ms Wilson has asked us to secure for her her expenses incurred in attending today. She has lost a day off work, she has had to give up a day of holiday, she has fares of some £62. We have thought long and hard about finding a way in which we could make an order which would allow Ms Wilson to recover those sums, or even part of them. The court cannot pay for such expenses of its own accord. The only way in which an order could be made to enable Ms Wilson to recover what she has lost is by an order for costs against Mr Monaghan or his company. An order for costs can only be made if the appeal has been pursued unreasonably and caused Ms Wilson the cost of coming down here unreasonably. The difficulty with seeing this as an appeal which has been pursued unreasonably, so as to create the need for Ms Wilson to attend today, is that Mr Monaghan has (save as to £30) won. We do not see, however hard we have tried (and we have tried hard) how it could be said that Mr Monaghan or his company has behaved unreasonably in pursuing the appeal, at least ever since the Preliminary Hearing which restricted the scope of the appeal. Thus, with the greatest regret we cannot see a basis on which we can award any order for costs in Ms Wilson's favour; and so she ends up by being a net loser because she has attended, and Mr Monaghan ends up by being a winner although he has not attended.
16. What one can say is, perhaps, that an appeal in relation to such a small sum really should never have arisen at all; but unfortunately, as we understand our jurisdiction, if an appeal has merit to it, it cannot be thrown out merely because the sum involved is very small. Perhaps the law should be otherwise, but it is not. Since that thought has all struck all of us, we thought it right to make it clear, perhaps in the hope that somebody may one day read this judgment and conclude that the law should be altered.
17. We would like to say two more things. First of all it is important that Ms Wilson is able to maximise the amount of interest which she receives on the sums that are due to her. We can see no reason why interest on those sums should not be payable, at least so far as the £350 is concerned, from the date on which the Tribunal first ordered it back in March 2001. Secondly, Ms Wilson thinks that Gary Monaghan Ltd is still trading. We would simply point out to her that if it is not and if the sums due are, therefore, never paid to her she would be wise to go to the CAB and seek advice because there are statutory provisions which entitle somebody who is owed money for wages and holiday pay which he or she does not receive because the person obliged to pay is insolvent to make a claim against the Secretary of State for payment out of the Secretary of State's funds. We would be upset if Ms Wilson left this Tribunal without knowing that, should Gary Monaghan Ltd fail to honour its obligations, she may well have some remedy elsewhere.