Norman v Lambeth College [1998] UKEAT 612_97_1609

EAT

Norman v Lambeth College

[1998] UKEAT 612_97_1609 · 1998-09-16

MR JUSTICE MORISON (PRESIDENT) : This is an appeal in the case of Mrs Foster Norman against Lambeth College. The applicant was employed by Lambeth College as a lecturer. She had been employed for some time. Her employment came to an end on 7th July 1996. In March 1996 a notice was sent to staff members inviting applicants for voluntary severance. The terms offered were a severance payment based on the equivalent of statutory redundancy together with pay in lieu of notice up to a maximum of six months. The applicant was offered voluntary severance with a payment £4,735.50 which was later increased to £5,166, representing statutory entitlement to redundancy, together with a payment in lieu of notice of £11,193. That offer was not acceptable. Negotiations took place which culminated in an agreement that she should receive a statutory redundancy payment of the higher figure of £4,735.50 plus a sum of £14,924 representing eight months salary in lieu of notice.

Accordingly, she was written a letter headed "Private and Confidential". The subject was marked "Voluntary Severance" and its a memorandum dated 1st May 1996. The memorandum reads as follows:

"I am writing to confirm the discussions we have had concerning your voluntary severance offer.

The College has agreed to the following figures:

Redundancy Lump Sum (11 weeks) £ 4,735.50

Lieu of Notice Payment (8 months) £14,924.00

Both these figures are calculated on an annual salary of £22,386 inclusive of London Weighting.

I confirm that your last date of service will be 7th July 1996, and that the above payments will be paid in the end of July pay run, for which the payday is Friday 26th July. The redundancy payment is tax free.

Please note that this arrangement is a personal agreement between yourself and the College, and should not be discussed with other employees.

Please could you sign and return a copy of this memo to confirm your acceptance of this final offer on voluntary severance.

[ Underneath that was put ]

I accept the above figures as part of a voluntary severance offer, on the terms as stated. I agree to treat this offer as confidential."

That was signed by the applicant on 9th May 1996. She left her employment on 7th July 1996. She was paid the monies, and thereafter presented a complaint to the Industrial Tribunal.

After she had left their employment, the statutory redundancy figure was recalculated to the figure I have already given. She put in her complaint to the Industrial Tribunal, which related to two matters, the first that she should be accredited with an extra hours which she had actually worked for which she had not been paid; and secondly, that she was entitled under her contract of employment to be paid for a holiday period from 7th July to 31st August 1996, on the basis that she had already during the year in question, that is the academic year, 1995-96, worked the requisite 190 days.

The Industrial Tribunal concluded in relation to the extra hours issue, that she was entitled to the net equivalent of 94.5 hours after deducting for tax and National Insurance. In relation to the claim for holiday pay, what they said was:

"7 ... on a true construction of the terms and conditions of the agreement reached between the parties that Mrs Foster Norman has accepted that her contract would terminate on 7 July 1996. She was paid up until that date. The additional payment of eight months' salary in lieu of notice ran from 7 July 1996. She was no longer employed after 7 July 1996. Accordingly, her entitlement to salary ceased."

What Mrs Foster Norman says on the appeal is that the Industrial Tribunal has misdirected itself in law. She says:

"My position under my contract of employment was that I was entitled as a matter of right to be paid holiday pay once I had earned it by serving 190 days during the relevant year."

Accordingly, she had an accrued right to holiday pay as at 7th July. She says that the letter of agreement, to which I have referred, does not expressly deal with holiday pay entitlement and, therefore, cannot be construed as taking away from her an accrued right which she had already earned. She says that in the absence of some statutory provision or common law, equity should intervene to make sure that the employers should not be unjustly enriched in respect of obtaining advantage from the fact that she had served for them and had earned her holiday pay and that it was unjust that having earned it, they should refuse to pay it.

Whilst we can understand the force of that point. It seems to us that the Industrial Tribunal have not erred in law in relation to it. The issue before them was what was the nature of the agreement which was entered into voluntarily by both parties in May 1996. It can be said that she was not required to accept the terms which were offered. Indeed, she did not accept the terms which were originally offered, but negotiated hard and managed to increase those sums. She was paid gross monies in lieu of notice payment of eight months, whereas previously the employers had only been offering six months (although she would say she was entitled to payment of 12 months). But having regard to the fact that she was receiving this money in July to represent her losses in the future, it seems to us that she had negotiated rather well for herself in that respect.

Like the tribunal, we agree that the effect of this compromise agreement was that the parties had agreed that her employment and her rights terminated as at 7th July 1996 in consideration of the payment to her of the sum set out in the letter. The natural reading of that document is that this is the final offer on voluntary severance; that she was no longer entitled to claim monies after her employment had ceased; and that the eight months that she was paid would take into account any holiday entitlement that she felt that she was already due and owing.

Accordingly, we have to say that we are not persuaded that there is an arguable point of law in the appeal, however attractively it was advanced before us.

She does believe that she has been the victim of some injustice. I think that that stems largely from the fact that on a previous and earlier occasion she had been prevented by the Industrial Tribunal from arguing a case of race discrimination. She says that she was told during the course of the negotiations that the employers would not be refurbishing kitchens in their Vauxhall premises where she could carry out her teaching activities, teaching catering at NVQ Level 1. But having been told that they were not refurbishing Vauxhall, she discovered, she says, that they actually did refurbish Vauxhall and put into the Vauxhall premises the catering team which was parallel to hers where everyone appeared to be white; whereas in her team, everyone was black. But it seems to us as we pointed out during the course of the hearing, that that is not a grievance which we can deal with since she did not appeal the tribunal's refusal to allow her to amend complaint.

Accordingly, although this judgment will be a disappointment to her, we are nonetheless convinced that the Industrial Tribunal was correct in the decision it arrived at and that therefore there is no arguable point of law on which she can rest her appeal. For those reasons, her appeal must be dismissed.