Sim v ASDA Property Holdings Plc [1999] UKEAT 310_98_1201

EAT
Sim v ASDA Property Holdings Plc
[1999] UKEAT 310_98_1201 · 1999-01-12
HIS HONOUR JUDGE CLARK: This is an appeal by Ms Sim against the decision of the London (North) Employment Tribunal, sitting on 3 December 1997, dismissing her claim of unauthorised deductions from wages brought against her former employer, the Respondent Asda Property Holdings Plc. Extended reasons for that decision are dated 3 February 1998.It is important to note at the outset that the Appellant did not appear and was not represented before the Employment Tribunal. Apparently she did not attend due to work commitments. She did not apply for an adjournment. The Respondent appeared, represented by its Assistant Company Secretary, Mrs Winer. The Tribunal took into account the contents of the Appellant's Originating Application in accordance with Rule 9(3) of Employment Tribunal's Rules of Procedure.The nature of the claim disclosed by the Originating Application lodged on 2 September 1997 was that the Appellant had commenced employment with the Respondent on 15 July 1997 and that employment was continuing at the date on which the pleading was signed by the Appellant, 1 September 1997.The particulars of the Appellant's complaint of unlawful deductions from wages read as follows:
"I commenced employment on 15 July 1997. According to my contract of employment my salary is £15,000 per annum to be paid on the last working day of each month. I have been paid a total of £351.62 on 30th July 1997. I was not paid my contracted salary on either 31st July 1997 or 29th August 1997. My claim is for the salary which I have not been paid and continue not to be paid until my contract of employment is properly terminated.
By their Notice of Appearance the Respondent contended that the Appellant had been dismissed on 25 July 1997 for gross misconduct. It was alleged that she had accepted employment commencing on 15 July 1997 on terms agreed and contained in a written contract of employment dated 11 July 1997, subject to a variation in her hours of work contained in a document signed by the Appellant and dated 15 July. She proved to be a thoroughly unsatisfactory employee, habitually arriving late for work and indeed failing to attend at all on 18 July. Following her dismissal she had been paid for 6½ days work. She was owed nothing further.We have seen the documentary material placed before the Employment Tribunal by the Respondent. First, the contract of employment. The Appellant was to be paid at the rate of £15,000 per annum. Her hours of work were 9.30 am to 6 pm, Monday to Friday, with one hour off for lunch. She was entitled to 1 2/3 days paid holiday per month worked, i.e. 20 days holiday per calendar year during the first five years of employment. She was to work a trial period of one month during which the employment was terminable on one week's notice on either side.The history of her short employment showed that on 16 July she arrived late. On 18 July she did not attend. She telephoned to say that she had been locked out of her flat the previous night and was "too knackered" to attend. On 24 July she arrived for work at 11.20 am and left at 4 pm leaving her colleagues in the lurch. On 25 July she did not arrive for work. As a result Mrs Winer dictated a letter in the following terms:

"Dear Miss Sim

I understand that on Thursday 24th July 1997 you came into the office at 11.20 a.m. approx and left at 4.00 p.m. approx and you were not in the office today, the 25th July 1997.It would appear that you do not wish to continue your employment with us and as this is the probationary period as stipulated in your employment letter of 11th July 1997, I will discuss the matter with Mr P L Huberman next week.

In the meantime please do not come into the office anymore."

The Appellant replied by letter dated 26 July, in which she said among other things:
"It's unbelievable that you have made such a hasty and final decision without even talking to me."
On 30 July Mr Huberman the Respondent wrote to her enclosing a P45 showing her leaving date as 24.7.95, and a payment of £375 less tax. After National Insurance was also deducted her net payment was £351.62.The Employment Tribunal accepted that the Respondent had paid the Appellant everything to which she was entitled an dismissed the complaint.

The Appeal

Mr Dawson, who was due to sit with Mr Cowan and myself, did not attend this morning. We therefore enquired before the Tribunal sat whether the parties were content to go ahead with a two member panel. They were.When Ms Sim rose to address us she informed us that she had been let down by her legal representative and requested an adjournment. We enquired whether she was prepared to pay the Respondent's costs thrown away by the adjournment. She was not. Accordingly, having heard representations from Miss Collier we proceeded with the appeal.Ms Sim relied upon the grounds of appeal advanced in the Amended Notice of Appeal, lodged to take account of the points made in the judgment of Mr Justice Bell at the preliminary hearing in this case held on 18 March 1998. Having heard Miss Collier in reply to those grounds our conclusions are as follows:(1) We are not satisfied that the Tribunal, in paragraph 2 of their reasons, materially misstated the nature of the Appellant's case contained in her Originating Application.(2) It is correct to say that the Tribunal's finding at paragraph 4 of their reasons, that the Appellant was not entitled to any notice of termination of employment by virtue of the provisions of Section 86(1) of the Employment Rights Act 1996 (minimum periods of notice) was incorrect. She was entitled to one week's notice under clause 7 of the contract.However, no claim for damages for damages for wrongful dismissal was advanced in the Originating Application. On the contrary, it was the Appellant's pleaded case that the contract continued to the date of that application. In these circumstances it simply was not open to the Employment Tribunal to make and award of damages for breach of contract, pay in lieu of notice not forming part of a claim for unauthorised deductions. Delaney v Staples (1992) ICR 483 . Had such a claim been made, it would have been met by the plea that the Appellant was lawfully summarily dismissed by reason of her employment record amounting said the Respondent to gross misconduct.(3) In our judgement, by accepting the Respondent's case as set out at paragraph 3 of the reasons, the Tribunal was implicitly, if not expressly finding that the Appellant was dismissed by the Respondent's letter of 25 July which she received on 26 July. Further, the tone of the Appellant's letter to the Respondent dated 26 July made it clear that she then believed she had been dismissed, contrary to her pleaded case in the Form IT1. If there was any doubt about the matter, it was removed by the Respondent's letter of 30 July enclosing her form P45.(4) There was no entitlement to pay for the days not worked, that is 18 and 25 July. There was no evidence before the Tribunal that the Appellant was willing and able to work on those days Miles v Wakefield (1987) ICR 368 . On the contrary, it appeared that the Appellant had no legitimate excuse for failing to attend or indeed for failing to do a full day's work on the few days that she was employed.(5) It followed from the Tribunal's implicit finding that the Appellant was dismissed on 26 July that she was not and could not have been suspended with pay after that date.It follows that we reject each of the grounds of appeal advanced in this case and accordingly, we must dismiss the appeal.

Costs

We have considered this application for costs but we think that the points, having been clearly identified by this Tribunal at the preliminary hearing stage, the Appellant was entitled to pursue a claim to a full hearing notwithstanding the settlement offer of £766.54 which was made in the Respondent's solicitor's letter of 14 August 1998. Accordingly, we find that this is not a case in which we should exercise our powers under Rule 34(1) to order costs against the Appellant and the application is dismissed.