United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0375/11/DA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 30 November 2011

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

A & J MENSWEAR (RETAIL) LTD APPELLANT

MRS M G JACOBS RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

UNLAWFUL DEDUCTION FROM WAGES

CONTRACT OF EMPLOYMENT

Notice and pay in lieu

Damages for breach of contract

Whether Employment Judge entitled to conclude (a) that wages had not been paid, unlawfully and (b) that Claimant gave 1 month’s notice of termination during which period she ought to have been paid.  Held: on material before him, Employment Judge reached permissible conclusions.  Appeal dismissed.

HIS HONOUR JUDGE PETER CLARK

Introduction

1.            This is the full hearing of an appeal by A & J Menswear (Retail) Ltd, the Respondent before the Truro Employment Tribunal, against a Judgment of Employment Judge Griffiths, sitting alone on 4 February 2011, which awarded the Claimant, Mrs Jacobs, the sum of £1,267.50 gross in unpaid wages.  That Judgment, with Reasons, was promulgated on 9 February.  Today the Appellant, the Respondent below, does not appear, but relies on written representations.  Mrs Jacobs has appeared in person.

2.            The judge’s Reasons are so economical that I should set them out in full:

3.            The judge found that the Claimant’s wages amounted to £195 per week gross.  By way of background, the Claimant was employed by the Respondent as assistant manager of their Newquay store.  She suffered a bereavement in the family which led to her going to South Africa to attend the funeral of a cousin, to whom she was particularly attached.  I have seen correspondence sent by the Respondent to the Claimant, and which the Claimant tells me today was before the Employment Tribunal.

4.            On 30 June 2010, the Respondent wrote to her home address, contending that she had taken unauthorised leave from 27 June.  On 8 July she was asked to contact the human resources department on her return.  The Claimant tells me that on 15 July she telephoned an HR advisor, Kay Warren, at the Respondent’s head office and was advised not to return to work pending completion of a disciplinary investigation.  On 19 July, she was called to an investigation meeting.  That meeting was then postponed until 30 July.  On that day she attended a meeting, following which she sent a letter of resignation, dated 30 July, which ended: “I [the Claimant] hereby give notice to terminate my employment with [the Respondent]”.

5.            In their written skeleton argument the Respondent challenges first the judge’s finding that the Claimant was instructed on 15 July not to return to work until further notice (see Reasons, paragraph 2).  That seems to me to be a finding of fact with which I cannot interfere on appeal, and the Claimant has confirmed the nature of the evidence she gave below, as to her conversation with Kay Warren on 15 July.  The Claimant was treated as still employed during July; even if she was implicitly suspended.  Such suspension must be on pay absent a clear contractual term providing for suspension without pay, and none has been put before me.  I therefore reject that first challenge.

6.            Secondly I look at the August period.  The letter of 30 July itself specifies no termination date for her notice.  However, Mrs Jacobs tells me that under the terms of her contract of employment, after 13 weeks’ service (and she had completed more than 13 weeks) employees were required to give one month’s notice of termination.  I have also considered the correspondence after 30 June.  Letters were sent by the Respondent on 4, 17 and 31 August.  The Claimant did not respond.

7.            However, those letters were concerned with a question as to whether or not she wished to pursue a grievance.  I also note that she was asked to return the keys to the Respondent’s shop premises in Newquay.  Mrs Jacobs tells me today that, in fact, those keys were collected by the new assistant manager from Mrs Jacob’s new employment, in fact, working in a restaurant at which she had worked part time prior to these events in July and August 2010.

8.            What she tells me today (and there are no representatives here from the Respondent) is that had she been asked to work out her notice, she would have done so.  I am therefore not in a position to find on appeal that she was not ready and willing to work for the Respondent during the August period (see Miles v Wakefield [1987] ICR 368).  As to whether or not she gave one month’s notice, although her letter was silent on the point, it seems to me that the Employment Judge was entitled to infer that the reference to notice in her letter was a reference to the contractual notice and the Respondent was aware of her contractual obligation to give one month’s notice.

9.            In these circumstances, I am not persuaded by the Respondent’s written submissions that the judge erred in law (and appeals to the EAT are on points of law only) in finding that she was entitled to payment for the month of August as well as the final two weeks in July.  It follows that this appeal fails and is dismissed.