Crown Catering Group v Corbett [1997] UKEAT 214_97_2105

EAT

Crown Catering Group v Corbett

[1997] UKEAT 214_97_2105 · 1997-05-21

JUDGE PETER CLARK :

This is an appeal by the employer, Crown Catering Group Ltd ["Crown"], against a decision of a Chairman, Mr J Cole, sitting alone at the Stratford Industrial Tribunal on 10th December 1996 who upheld a complaint by Mr Corbett, the employee, that Crown had made an unlawful deduction from his wages. He was awarded the sum of £1,260.27. Extended reasons for that decision are dated 13th January 1997.

The employee commenced employment with Crown as Head Chef on 30th October 1995. His letter of appointment dated 1st November 1995 provided for a salary of £20,000 per annum payable monthly in arrears. A full contract of employment was to follow, but the employee never received it before leaving the job on 21st November. The letter provided for one weeks notice of termination on either side.

Shortly after commencing work the employee received a better offer from a competitor of Crown. He spoke to his manager, Mr Anthony Clarke, who told him that "You are liable not to get paid if you leave." Nevertheless, the employee left on 21st November without giving any notice of termination.

On 13th December the employee wrote to Crown asking for his unpaid wages in respect of the three weeks that he worked for them. By letter dated 18th December Mr Morgan, the Managing Director of Crown, replied saying that the Company had lost £700 on a refund for a function at which the employee was due to prepare and cook the food. In addition, Crown had been put to expense in replacing the employee during the busy Christmas period. He refused to pay the three weeks wages due, and indicated that Crown would file a counter-claim should the employee bring a claim for his wages.

In the circumstances he presented an Originating Application to the Industrial Tribunal on 6th February 1996, claiming his wages.

In response, Crown filed a Notice of Appearance in which they said this:

"We intend to resist the application because the information supplied is incorrect, particularly No. 7 40 hours and there is no indication of this anywhere in any correspondence to Mr Corbett. We issued a contract of employment stating that if he breached his contract under his notice period, he would be in breach of his contract and not entitled to any outstanding salary. He agreed this contract of employment.

We dispute he worked from 30th October to 20th November - 3 weeks because there were substantial days missing during that period - at least six.

We have not paid any salary because of his contract of employment which he agreed to. Furthermore we are issuing a summons in the County Court for breach of contract and damages for failing to give the correct notice period."

When the matter came before the Industrial Tribunal Crown did not appear and were not represented. The employee appeared, represented by his father, and gave evidence which was accepted by the Chairman.

He held that the unlawful deduction claim was made out and awarded three weeks pay, leaving the employee to make arrangements for deduction of tax and National Insurance. We think that the proper course is for Crown to make the necessary deductions and pay those amounts to the relevant authorities and to pay the balance to the employee.

The Chairman observed that it came as no surprise that Crown did not appear; they had made various requests for a postponement which had been refused. He thought it unfortunate that Crown had chosen not to attend, but took into account Crown's indication that it wished to pursue a claim against the employee in the County Court.

The Appeal

Mr Morgan appears before us today on behalf of Crown at this preliminary hearing.

He invites us to remit the case for a fresh Industrial Tribunal hearing in order to give the Company an opportunity to advance its case and to be heard.

Unfortunately, it is not that simple. Our powers to interfere with tribunal decisions are limited to correcting errors of law.

In this case, Crown made two unsuccessful applications for a postponement of the hearing fixed for 10th December 1996 on the grounds that December was their busiest period. Those applications were refused. There was no appeal against those refusals.

Accordingly, it was a matter for Crown whether they attended to defend this claim before the tribunal or not. They chose not to for what were no doubt good commercial reasons.

However, that decision resulted in the tribunal hearing only one side. The Chairman cannot be criticised for that state of affairs.

Further, it is now clear that Crown were unaware of the tribunal's powers to hear a counter-claim. They indicated in their Notice of Appearance that their claim against the employee was to proceed in the County Court. Accordingly there was no counter-claim before the Chairman.

In these circumstances, in our judgment, this appeal raises no arguable point of law to go to a full hearing before the appeal tribunal and accordingly this appeal must be dismissed.