United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS G COX (the Appellant in Person)
For the Respondent	MR K CHARLES (Representative) Messrs Doyle Clayton Solicitors Cannongate House 62 - 64 Cannon Street London EC4N 6AE

SUMMARY

Unlawful Deduction of Wages


 


HER HONOUR JUDGE WAKEFIELD

1. This is an appeal by Miss Geraldine Cox against a decision of an employment tribunal sitting at Ashford, Kent by which her complaint of unlawful deduction of wages was dismissed, other than in respect of the first 12 weeks of her employment for which an award was made totalling £226. 80.
2. The brief background facts are that the Appellant commenced employment with the Respondent, Dixons Stores Group Retail Ltd, in September 2002, following an interview with Mr McMullon, the Respondent's General Manager. She was to work at the Respondent's Medway store as a member of the sales team at weekends only for a total of 15 hours per week. About two weeks after commencing employment, the Appellant was issued with a contract of employment, the terms of which she claims, and did then immediately claim, did not accord with those she had been offered and had accepted in interview. The Respondent accepted that the hourly rate, shown in the contract of employment as £5.04, was wrong. It should have been £5.05 and that is what the Appellant had been paid until the rate increased to £5.17 per hour on 1 May 2003. But otherwise the Respondent claimed that the contact of employment correctly reflected the agreement made between the Appellant and the Mr McMullon.
3. In the Originating Application, issued in September 2003, the Appellant claimed that she had been told in interview that she could expect to earn just under £170 per weekend. She claimed in addition before the Employment Tribunal that in interview she had been told that all sales staff were paid at the same hourly rate and therefore that she was entitled to have been paid at a rate of £7.83, which some sales staff were receiving.
4. A further issue before the Employment Tribunal was as to the level of a guaranteed sales supplement to which staff were entitled, both during the training period and thereafter.
5. At the Employment Tribunal, evidence was heard from the Appellant and, on behalf of the Respondent, from Mr McMullon and Miss Gill, Human Resources Manager, who also represented the Respondent before the Employment Tribunal. The proceedings apparently started quite late in the day, after 3pm, and were conducted fairly informally, with Mr McMullon giving evidence from where he sat in the tribunal room and not taking an oath or making an affirmation.
6. In the Extended Reasons for the Decision, sent to the parties on 22 December 2003, the Employment Tribunal referred to the contract of employment which set out the provisions for payment of individual sales supplement and guaranteed supplement and, having considered the contentions of Mr McMullon and of the Appellant as to what had happened at the interview, preferred the evidence of Mr McMullon. They concluded that for the first 12 weeks of the employment the Appellant had been guaranteed a supplement of £125 per four weeks and had been underpaid by the sum of £226.80 but that thereafter she was entitled, the store she worked in not being a sub seven million pounds store, to a pro-rata proportion of £250 per four weeks, according to the number of hours which she worked. So she would be getting 15/40 of the £250 guaranteed supplement. That being so, the Tribunal concluded that after the first 12 weeks she had suffered no wrongful deductions.
7. In challenging this decision, the Appellant asserts, in essence, two main grounds. Firstly, that Mr McMullon misrepresented what he had said to the Appellant in interview as to her potential earnings and that he had lied about this at the Employment Tribunal, not having taken an oath or made an affirmation. Secondly it is said that the Employment Tribunal misunderstood the sales performance pay supplement scheme and therefore made impermissible findings of fact.
8. On behalf of the Respondent, it is argued that the findings of the Employment Tribunal as to the terms and conditions of the Appellant's employment were in accordance with the documents, including the contract of employment, and were not merely based on the credibility of Mr McMullon. It is pointed out with reference to the cases of Piggott Brothers & Co Ltd v Jackson and Others[1992] ICR 85 and British Telecommunications Plc v Sheridan [1990] IRLR 27, that an appeal to this Employment Appeal Tribunal cannot be a rehearing of the facts and that an assertion of misunderstanding or misapplication of the facts cannot, in the absence of perversity, be a separate category of grounds of appeal.
9. Whilst it is unfortunate that pressure of time at the Employment Tribunal may have resulted in some procedural laxity, I am unable to find that this Employment Tribunal fell into any error of law. They had before them oral and written evidence as to the terms and conditions upon which the Appellant accepted employment, including her contract of employment and various schedules of pay scales.
10. The Appellant sought today to introduce new evidence before this Employment Appeal Tribunal, but none that appeared of any relevance and so I did not permit it. There was, on the face of the documents and from the indications before me from all sources, an ample basis for the Employment Tribunal's findings that the Appellant had misunderstood what Mr McMullon had said to her in interview.
11. The Appellant has not persuaded me that this Employment Tribunal addressed the wrong questions or reached impermissible answers. The appeal is dismissed.