Royal Hotel (NW) Ltd v Baker [1998] UKEAT 227_98_2406

EAT
Royal Hotel (NW) Ltd v Baker
[1998] UKEAT 227_98_2406 · 1998-06-24
MR JUSTICE KIRKWOOD : This is the preliminary hearing of an appeal by the Royal Hotel (NW) Ltd against the decision of an Industrial Tribunal sitting at Liverpool on 4 December 1997, which adjudicated that the Appellant was liable to pay to the Respondent, a former employee, the sum of £346.13 representing 7.5 days pay.The matter arises out of some unpleasantness at the hotel where the employee, Mr Baker, worked, which resulted in his being suspended without pay in these terms:
"I am suspending Mark Baker for disobeying a direct order to telephone a member of staff to cancel her having to come into the hotel to explain herself to him, on her day off."
That was dated 31 July 1997.On 1 August a letter was sent to Mr Baker. He apparently did not actually receive it for some days, but it said this:

"Dear Sir

This letter is to confirm your suspension from today without pay until further notice. In accordance with the Company's disciplinary rules and regulations an investigation is under way and you will be notified of any disciplinary hearing or action to be taken against you within the next 7 days."On 7 August 1997 a further letter was written to the employee:
"I have now completed my investigations surrounding recent events and I have concluded that you have clearly breached numerous company rules and regulations and not for the first time, having previously been warned about your conduct when you attended upon company premises after normal licensing hours and off duty and in the company of others who were not residents of the Hotel and unlawfully consuming with others alcohol purchased from the bar.
On Thursday the 31st ult you blatantly disobeyed a direct order given to you by a Director of the Hotel at 7.45 p.m. which amounted to gross insubordination."The decision communicated to Mr Baker was to give two weeks notice terminating his employment and informing him he would not be required to serve out the notice but would be paid in lieu thereof: "The effective date of commencement of notice to commence 8/8/97 and your employment here will cease on 22/8/97".Mr Baker applied to the Industrial Tribunal complaining of unfair dismissal, breach of contract and withholding wages.The unfair dismissal case came before an Industrial Tribunal on 4 November and was struck out on the basis that he had less than two years' continuous employment, so did not qualify for an unfair dismissal claim under the legislation. Because that claim was struck out, the Tribunal did not adjudicate upon, because it did not need to, Mr Baker's assertion that whatever else may have happened, he had not been interviewed or consulted in any way in the course of the investigation.That left outstanding Mr Baker's claim for breach of contract and unpaid wages and his case turned solely upon the circumstance that he had suffered 7.5 days of suspension without pay and he claimed entitlement to that money.Mr Baker appeared before the Industrial Tribunal and was represented. The Respondent did not appear and was not represented. The Chairman said this:
"Having heard and considered the evidence given by the applicant and the representation made on his behalf and considered the respondents Notice of Appearance, the Tribunal found that the applicant had been dismissed by the respondent in breach of contract and that he was entitled to 7.5 days pay in respect of the period during which he was wrongfully suspended without pay. One day's pay amounts to £46.15. 7.5 days equals £346.13."
Mr Tartt appears for the Hotel today. He is a Director and he says that their case is that the Company's terms allowed for suspension with or without pay and they exercised their right to suspend without pay, pending investigations. The decision of the Industrial Tribunal challenges the hotel's right and indeed, any employer's right, to make a suspension without pay.It seems to us that, had the decision of the employer been, following its investigation, to dismiss Mr Baker summarily there and then without any notice or pay in lieu of notice, then the decision to suspend without pay was sustainable. But since the decision was to give two weeks' notice terminating the employment, although in fact not requiring the notice to be worked against a payment of two weeks' wages, the employer thereby affirmed the contract of employment and brought it to an end by termination in the way I have described. So the money for the 7.5 days in fact remained payable. Thus, the conclusion of the Industrial Tribunal was right and the Hotel, the Appellant, has no arguable point of law to proceed to a full hearing of an appeal.In those circumstances this appeal is dismissed at this preliminary stage.