MacMullen v Cooke (t/a The Netherton Nursing Home) [1999] UKEAT 1409_98_2403

EAT
MacMullen v Cooke (t/a The Netherton Nursing Home)
[1999] UKEAT 1409_98_2403 · 1999-03-24
THE HONOURABLE MR JUSTICE HOLLAND This matter arises out of the following chronology. In November 1994, the Applicant, Mrs MacMullen entered the employ of the Respondent Nursing Home as a night sister. By the beginning of 1997, her hourly wage rate was £7. In the course of that month, the Respondent employers told her that they were going to reduce the rate to £6.30 per hour, allegedly to bring it into line with the wages paid to fellow employees. The Applicant understandably took legal advice. The end result was that on 20 February 1997, solicitors wrote on her behalf to the Respondents contending that they were in breach of contract in as much that they were not paying her the sum that had been agreed as the hourly rate. There was no reply to that letter.It seems that on 30 May 1997, she was issued with written terms and conditions which recorded her hourly rate at £6.30. There is no finding as to the way that matter was then further dealt with, and in particular there is no finding as to whether there was any signature appended to those terms and conditions.Continuing with the chronology, on 31 August 1997, she was made redundant. On 26 September 1997, her Union wrote on her behalf to the Respondents"claiming a redundancy payment, holiday pay and money in lieu of notice alleging that the Respondent was in breach of the contract which required him to pay the Applicant at the rate of £6.30 per hour".It seems that that claim, based on those representations has been settled.By way of an IT1 dated 21 July 1997, the Applicant complained of racial discrimination and unauthorised deduction of wages. The latter complaint came before an Employment Tribunal held at Southampton on 22 September 1998. For the purposes of that hearing, the Tribunal was constituted by the Chairman sitting alone. In the result, the Chairman directed himself that there were two issues. The first was as to whether £7 per hour was the amount properly payable to the Applicant. The second issue was as to whether that amount had been properly payable within 3 months of 21 November 1997, that is within 3 months of the presentation of the complaint to the Employment Tribunal.In the event, his decision focused on the latter issue and as to that, he made a finding that prior to 22 August 1997, that is prior to the inception of the 3 month period terminating on 21 November, the Applicant had affirmed a variation in her contract, that is she had agreed to be employed at the lower rate. Thus it is that he found that as at 22 August and for some time before, there had been no unauthorised deduction from her wages. Indeed he expressly found
"the amount properly payable to the Applicant was £6.30 per hour prior to 22 August 1997. If there was an unlawful deduction prior to that date, this application is out of time. For more than 6 months after the variation in the Applicant's terms, she continued to present herself for work each day and to accept pay at the new rate."
Before us today Mr Morton, operating under the ELAAS scheme, has submitted on behalf of Mrs MacMullen that the Extended Reasons of this Tribunal disclose an error of law. As to this, he draws attention to Section 13 Employment Rights Act 1996 and in particular at paragraph 1 which reads:
"The employer shall not make a deduction from wages of a worker employed by him unless (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction."
Turning from that provision to the facts as found by the Tribunal and reiterated in this judgment, he points to the absence of any finding that the Applicant had signified in writing her agreement or consent to the variation in the terms of her contract, that is to the variation that substituted £6.30 per hour for £7 per hour. Thus it is he submits that there was no apparent basis for a finding that there had been an affirmation of the contract, essentially it would seem on the basis of passive acceptance of the terms and conditions issued in May 1997.It is in those circumstances that he submits that there is here an arguable question of law arising out of these reasons sufficient to found an appeal to this Tribunal. We agree with him, and that being the case, we direct that this matter should now be listed for an inter-partes hearing at which this point can be the subject of argument from, not only the Applicant's side, but also from the Respondent's side. To that end, he has helpfully drafted an amendment to the Notice of Appeal to deal with this point and we direct that that amendment take effect. He will perhaps assist us by arranging with this Tribunal that this amendment to the Notice of Appeal be typed up so that it can be available, not just to this Tribunal, but also it can be remitted to the Respondents together with this judgment.This does not totally dispose of the matter. First, dealing with this particular decision of 22 September, Mr P MacMullen on behalf of the Applicant, his wife, takes a further point and that is as to the conduct of the Chairman at the meeting. We interpose that the Chairman was sitting on his own without lay members. By way of an affidavit from the Applicant, sworn on 2 December 1998, she makes allegations about the Chairman's behaviour. In effect, she contends that at a stage in the course of the hearing the Chairman lost his temper in an unhappy fashion and on that basis, she contends that thereafter he was unable to give the appearance of absence of bias. Thereafter in short it would be difficult for him to maintain an overtly judicial demeanour.That matter was communicated to the Chairman himself, who by way of a letter to this Tribunal dated 20 January 1999, refuted those contentions. Before us today, Mr MacMullen has reiterated them. Having so far directed an inter-partes hearing to deal with the point raised by Mr Morton. We propose to refer this further matter to that hearing. We do so for the following reasons. First the issue raised as to the conduct of the Chairman is a matter that is potentially serious as indeed is the issue that arises between the Chairman and the Applicant. The matter is plainly important from the point of view of both parties. We are therefore concerned that this Tribunal should have an opportunity to reflect upon and deal with this issue. In order to prepare the way for that resolution, we direct the Registrar of this Tribunal to communicate with Mr C Darton of Counsel. Mr Darton was at the hearing on 22 September 1998. He there represented the Respondents. We direct that the Registrar remit to him a copy of the affidavit of the Applicant and of the reply from the Chairman of 20 January 1999. We would ask the Registrar to invite Mr Darton to assist this Tribunal by providing an account of his own recollection of the proceedings so that we may have some further material, hopefully from a plainly independent source as to the way in which matters proceeded. No doubt Mr Darton will conceive it his duty to do his best to assist this Tribunal in this potentially distressing matter.That then leaves one final matter for our disposal that arises as follows. After the Chairman had provided the Extended Reasons following the hearing of 22 September, the Applicant sought a review of that decision. That review was denied to them by the Chairman indicating that he could find no grounds for such. His precise words were:
"I refuse the application for a review of the decision herein on the grounds that the application has no reasonable prospect of success."
By way of her husband, the Applicant appeals that decision and has sought to persuade us that there is here a further ground that would justify an inter-partes hearing. We have listened carefully to what he has to say. We have read the papers with care but we can find no basis at all upon which we can invite this Tribunal to deal with the matter as a matter involving a point of law. The essential approach of this Tribunal to the Chairman's decision refusing a review is to ask ourselves whether his decision can be impugned as one that was perverse, or whether it was within the scope that his jurisdiction gives to him. We can find absolutely no basis whatsoever for finding that it was perverse.Mr MacMullen contends that he was invited to review on the basis that evidence had now come forward, suggesting that the Respondent had lied. As the Chairman himself observed in the Extended Reasons for refusing a review, that is not a basis upon which he can properly grant a review. The review procedure does not give him power to re-open factual issues that were for resolution at the original hearing. Thus it is that we arrive at our decision with respect to that appeal, that is the appeal that arises with the number 1410. Turning back to 1409, we direct the matter goes forward in the fashion already spelled out in this judgment. We would like to conclude by thanking Mr Morton for the assistance he has given, not only to the Applicant, but also to this Tribunal.