Efficient Screen Printers Ltd v Mullen & Anor [1991] UKEAT 563_90_1811

EAT
Efficient Screen Printers Ltd v Mullen & Anor
[1991] UKEAT 563_90_1811 · 1991-11-18
MR JUSTICE TUCKER: These are employer's appeals from two Decisions of the Industrial Tribunal held at London (North) on the 17th September 1990. It was the unanimous Decision of the Tribunal that the Applicants who are Respondents to this Appeal were made redundant. There is no appeal against those findings or the consequent Orders that the Appellants should pay to the Respondent redundancy payments. But the Tribunal went on to Order the Appellants to pay to the Respondents in each case wages in lieu of notice in the sums of £484.50 pence and £1,196.24 pence respectively. It is only against those parts of the Decision that these Appeals are brought.The Appellants contend that the Tribunal erred in law in that they have no jurisdiction to make such Orders since a payment in lieu of notice is not wages as defined by Section 7(1)(a) of the Wages Act 1986. That sub-section is in these terms:
"(1) In this Part `wages', in relation to a worker, means any sums payable to the worker by his employer in connection with his employment, including - (a)any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise;"
The Respondents have not attended the hearing of this Appeal and their representatives notified the Registrar that they did not intend to be present. The Respondents did file Answers in which they contended that the Tribunal was given jurisdiction by Section 5(1) of the Act and that the definition under Section 7(1) includes payments in lieu of notice.Since the question in each Appeal is identical and since it is one of pure law it seems to us unnecessary to recite the facts of these cases. They are fully set out in the Tribunal's Reasons.Mr Francis who represented the Appellants before us and who also appeared before the Industrial Tribunal told us that most if not all of the time before the Tribunal was taken up with his submission that the contracts between the Appellants and Respondents had been frustrated by a fire which had destroyed the Appellants' premises.There was no discussion before the Tribunal gave its Decision about whether or not they had power to order payment of wages in lieu.Immediately their Decision was announced however, Mr Francis took up the point with the Chairman. He was aware of the Decision of this Tribunal in the case of Delaney v. Staples [1991] ICR 331 t/a Demontford Recruitment which had been decided in February 1990 and reported in "The Times" and he mentioned that case to the Chairman. However, according to Mr Francis she said that the Tribunal's Decision was based on another Decision of the same Tribunal though differently constituted in Jackson v. Foster Wheeler London Ltd [1989] IRLR 283.In that case the Tribunal had held that payment in lieu of notice was wages within Section 7. That is how the Orders in the present case came to be made. Since that decision was given the Court of Appeal have considered the Decision of this Tribunal in the case of Delaney and have affirmed it so far as is material to the present Appeal. The Court of Appeal's Decision is reported at ICR [1991] p.331. We have been referred to the leading judgment of Lord Justice Nicholls as he then was at p.342 and p.343 of that report where he sets out the reasons for the view which he reaches:
"that sums payable by way of damages for wrongful dismissal are not within the statutory definition contained in Section 7"
We are bound by that view with which the Master of the Rolls and the other Member of the Court of Appeal agreed. We respectfully agree with the conclusion and the reasoning by which it was reached.Accordingly we take the view that the Decision in Jackson was wrong and that the Decision reached by the Industrial Tribunal in the present case mistakenly based as it was on that Decision was also wrong, the Tribunal should have taken account of the Decision of this Tribunal in Delaney and felt themselves bound by it.Therefore we allow this Appeal to the extent that we quash the Orders made for payment of wages in lieu of notice.It will of course be open to the Respondents to pursue their claims in the County Court. We respectfully agree with the views expressed by the Master of the Rolls in Delaney that it is a very great pity that it is not possible for all claims arising out of dismissals such as these to be dealt with at one hearing by one Court or Tribunal but we can do no more about that.