Centrethorn Ltd v Breeze [1997] UKEAT 49_97_1104

EAT
Centrethorn Ltd v Breeze
[1997] UKEAT 49_97_1104 · 1997-04-11

JUDGE D M LEVY QC :

On 13 November 1996 the Chairman of an Industrial Tribunal (sitting alone) at Manchester held that the claim by Mrs Breeze for holiday pay was proved on a balance of probabilities and ordered Centrethorn Ltd to pay her the sum of £69.22 in accordance with the provisions of sections 13 to 27 of the Employment Rights Act 1996 .The reason for the decision fundamentally is found in paragraph 4(iv) of the learned Chairman's sole decision. The first sentence of that paragraph reads:
"4(iv) The written contract of employment, which was blank and was submitted to the Tribunal by the respondents, provided that there was an express entitlement 'to paid holidays during each year at the rate of one day for every four weeks' service completed at the time of taking holiday, plus one extra day to commence on a Saturday'. "
There is a further sentence and then the final sentence of that paragraph reads:
"The Tribunal was satisfied that this term and condition applied to the applicant's contractual situation."
It appears from that sub-paragraph and from the decision as a whole that the learned Chairman held that the written contract of employment governed the contract between the parties.From that decision Centrethorn Ltd appealed by Notice of Appeal dated 6 January 1997. By a letter dated 11 March 1997, a representative of Centrethorn wrote to the Tribunal saying:
"However, the Tribunal failed to take account of the clause contained in the Statement of Terms and Conditions of Employment which states that 'no payment will be made for holidays not taken at the time of the employment being terminated. "
The writer failed to put an inverted comma at the end of this paragraph.Unfortunately, nobody has attended for Centrethorn on its ex parte application this morning and we have not seen any copy of the Statement of Terms and Conditions of Employment. We are therefore not able to judge whether what is said by Centrethorn is right or wrong. If it is right, then it would appear to us that this would be a matter which could be conveniently reviewed by the Chairman because, if he per incuriam overlooked a sentence in the conditions, it would be appropriate for him to reconsider his decision. If however, there is no such clause then, in our judgment, there is no appeal to go forward.In these circumstances, we direct that a letter is sent by this Tribunal to Centrethorn Ltd as soon as possible requesting a copy of the Statement of Terms and Conditions of Employment to be sent to this Tribunal within seven days of the date of the letter. If such a letter is received this Tribunal will then send it and this judgment on to the Chairman, against whose decision the appeal is made, inviting him to review his decision. If no reply to the letter is received within seven days, or such extension time as the Registrar thinks fit to give to Centrethorn the appeal will be dismissed.If there is such a review which is unsuccessful, Centrethorn Ltd will be able to appeal from that decision. If there is a review which is successful, either party will be able to appeal from that decision.