Henderson v Hunting Contract Services [1998] UKEAT 504_98_0107

EAT

Henderson v Hunting Contract Services

[1998] UKEAT 504_98_0107 · 1998-07-01

MR JUSTTICE KIRKWOOD : This is the Preliminary Hearing of an appeal to us by Mr Henderson, who is a skilled pilot and flying instructor, from a decision of the Industrial Tribunal in the person of Mr Goodier, sitting by himself at Nottingham on 27 January 1998. To that Tribunal Mr Henderson had made a complaint, as follows:

"On 24 March 1997 I gave my employer notice to terminate my employment. On termination of my employment my employer failed to pay me monies due for work I performed from 1 March 1997 to the date my employment terminated on 31 March 1997."

There was a counter-claim before the Tribunal. The Tribunal made findings and calculations which resulted in a payment being due from Mr Henderson to the Respondents. Mr Henderson was represented by a Mr Allen of his professional society, as we understand, and the Chairman was confronted with a number of points.

The first point which was taken by Mr Henderson (or, on his behalf) is that his employment terminated in the following circumstances: On 23 or 24 March he wrote a letter saying "I want to end my employment on the 31st", or words to that effect. We have the letter here; it is dated 23 March, it is addressed to Captain David Wooldridge:

"I am sorry to have to inform you I must leave my employment with Hunting Aviation. This is due circumstances that arose over the weekend. I am due 3 days leave, which I intend to take immediately, and I will not be returning after the Easter Break."

In fact he did not report for work after the writing of that letter. The employers, at first, were unwilling to treat that letter as terminating his employment and apparently urged him to return. He did not. He took up employment (and one hopes it was satisfactory employment) with another employer.

In those circumstances he urged on the Tribunal that he was entitled to be paid for the period between 23 March and 31 March when he had said "my employment would end." The Tribunal found that, indeed, because the employers did not immediately accept that letter as ending the contract, the employment did continue until 31 March. "Therefore" said Mr Henderson to the Industrial Tribunal, and today to us, "I am entitled to be paid for that period from 23 March until 31st because the employment contract was still in existence". The short answer to that was that the vital term on his side, which was that he should work for the employer, was not being carried out. No work: no pay. Of course that does not apply if the employee is prevented by circumstances or by illness, or anything of that sort, from working, or if his employer has asked him not to work he will still be entitled to his pay for working notwithstanding that he was not working. But if he deliberately and in breach of contract does not work, as was the position here, he is not entitled to be paid anything.

The employers put in a statement of what they said was due to him. That was, as he says, belatedly. He would like to have received it earlier. It was dated 6 May (at pages 51 and 52 of a bundle put with our papers) and there the employers show that Mr Henderson was liable for various sums and they claim to deduct various sums. That was a very important part of his complaint to the Industrial Tribunal: as well as showing due to 21 March that statement showed that he was due for two days holiday pay and weekend pay of £750.

It may appear that the Chairman may have fallen into error so far as arithmetic goes. It is hard to say and we are certainly not going to go into a lot of arithmetical calculations; we have not heard all the evidence. We have learned that the Chairman proposes to hold a hearing to decide whether to review his decision and this, and a number of other topics, will, we hope, be put before him by Mr Henderson when he hears that review. It appears that the Chairman may have overlooked all or part of those concessions.

Then the employers claim to set off against the sum which they admitted to be due certain fees which they owed to the Civil Aviation Authority; the Chairman heard that and said "no, there is no express provision for deduction of those", a mess bill, which does not arise (that point is so small that it was abandoned) and then a sum for training that arises out of the terms of the contract which provides that the employers will provide and pay for a course, which cost £2,000, called Firefly Conversion Training (so that Mr Henderson would become a competent instructor, as we understand it).

Then the contract goes on to provide:

"Should the above named employee resign from the Company or be dismissed during the course of training or within a period of three years from the employment start date then the Company will [be] reimbursed as follows:

For each month of the three years not served, the employee will repay the Company one thirty-sixth of the training costs, on or before the date of leaving..."

So they claimed thirty one thirty-sixths of that and made that a deduction from his pay which, of course, was a very substantial one. So that was a matter in issue before the Tribunal.

What was said by Mr Henderson about that is that he has a right not to suffer an unauthorised deduction under Section 13 Employment Rights Act 1996.

(a) says, the deduction is not to be made unless:

"the deduction is required or authorised to be made by virtue of a statutory provision (that does not apply) or a relevant provision of the worker's contract,"

It was a matter for the Chairman, and in his decision on behalf of the Tribunal he held that that was a term which entitled the employers to make the deduction and we cannot, as at present advised, see any error of law in that, although we understand that this may be part of the review which has been asked for.

Then Mr Henderson took a point which he said he had not raised which was, first of all, that the sum of £2,000 was an arbitrary sum - the answer to that appears to be that he signed the contract which contained that sum - and he says that "in fact the employers are fraudulent people who are claiming double recovery because in fact they had had that sum refunded to them and were under no liability to repay the ministry and were therefore making a claim which was dishonest". He says that that was not investigated by the Tribunal. It may be that he can persuade the Chairman to consider that matter in his review but certainly we cannot consider it at the moment if it was not raised in front of the Tribunal.

He raises a number of other points which may very well depend on the result of the review such as, as I say, the amount of credit which the company is quite prepared to give him and various other contentions. His complaints about Sections, 8, 13 and 15 of the Employment Rights Act 1996 which, on the face of them, do not commend themselves to us immediately but we would certainly consider them, may or may not arise in view of the decision on the review. It may be that all matters can then be adjusted in a way which, whether entirely satisfactory to Mr Henderson or not, will at any rate make him feel that he has no occasion to appeal to us. It may well be that they simply will not arise after that review.

However that may be, we are not minded to give leave for this appeal to proceed at the moment. It seems to us about a great many of the points upon which Mr Henderson wishes to appeal, thta either they were not taken before or, on the face of them, they are unsupported by the sort of material which would enable us to adjudicate on them. But however that may be what we propose to do is this: we have expressed a view with regard to the question of pay. It is very hard to see how he could be paid for the period from 23 March to 31 March 1997. It is very hard to see how he can complain of the quantum of the sum required for Firefly Conversion Training in view of the fact that he signed for that. But with regard to the other points we are simply going to adjourn this appeal.

If Mr Henderson wishes to appeal against any findings or conclusions of the Industrial Tribunal on his Application for Review he may well be advised to make a separate appeal in respect of that. On the other hand, he may say that those findings illuminate and make it possible for him to pursue this appeal, in some respect or other. So rather than shut him out from that at a stage when the findings which may be made are, of course, entirely unclear to us, we propose to adjourn this matter and to give liberty to restore it when Mr Henderson has attended at the review and obtained such results as he can from the Tribunal's review of its earlier decision.