MRS A WRIGHT v MR W CLAPPERTON T/A AFTON HOTEL [2000] UKEAT 1465_99_1512

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1465_99_1512Case No Appeal No. EAT/1465/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A WRIGHTAPPELLANTMR W CLAPPERTON T/A AFTON HOTELRESPONDENT
Before
His Honour Judge D M LevyDate 15 December 2000
[1]APPEARANCES For the Appellant MR ROY LEWIS (Of Counsel) Instructed by Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA For the Respondent MISS AMINA ALI Instructed by Abbey Legal Protection Ltd 6th Floor 17 Landsdowne Road Croydon CRO 2BX JUDGE LEVY Mrs A Wright, ("the Appellant") was for some time working at the hotel owned by Mr W Clapperton trading as Afton Hotel ("the Respondent"). On 4 February 1999, she made an application to an Industrial Tribunal claiming unfair constructive dismissal and breach of contract. The complaint was heard by an Employment Tribunal sitting in Brighton on 3 September 1999 when the Appellant appeared in person and the Respondent was represented by Counsel (not Counsel who appears for him today). The result of the Tribunal's hearing was to find that the Respondent was not in breach of contract and that the claim of constructive dismissal based on that breach of contract failed and the application was dismissed.[2]From that decision there was an Appeal by notice dated 7 December 1999. The Preliminary Hearing of that Appeal came before Burton J and colleagues on 24 February 2000, when leave was given for the Appeal to be mounted on certain grounds. When the Appeal was called on this morning some of those grounds, after some discussion, were abandoned. There had been a marginal complaint that the Appellant's skeleton argument had been delivered late. Counsel for the Respondent had opportunity to consider that skeleton argument when the case was called on. The skeleton argument dealt with a time point which had been raised below and dealt with the provisions of the Employment Tribunals Act 1996 and the Employment Tribunal (Extension of Jurisdiction) Order 1994.[3]Having considered those submissions contained in the Appellant's skeleton argument, Counsel for the Respondent stated that she could not resist the Appeal against the holding that had been brought out of time and on this point the appeal succeeded.[4]An issue which arises on the Appeal is the sick pay to which the Appellant was entitled. A short document setting out the terms of employment of the Appellant is at page 62 of our bundle. Under the heading hours of work we find this:
"The basic working week is be 45 hours and will be spread normally over 5½ days per week. You will be notified by your Manager how these hours will be paid. You may be required to work on Public or Bank Holidays. For full time employees off sick, full pay is paid, with a Doctors note."
[5]In his Skeleton Argument Mr Lewis put the case thus:
"Entitlement to sick pay was set out in the written particulars of employment in an unambiguous term." and then he quotes the paragraph which we have set out. He submitted that: "
The Tribunal found that "the [Appellant's] written terms of employment entitled her to be paid in full during a period of sickness …and it was admitted by the Respondent that she was not paid in full for that period". The Appellant was content to rely on this finding."[6]We understand that the Appellant was paid statutory sick pay which was much less than her contractual payment of wages. The issue between the parties was whether the employer, the Respondent was obliged to pay the difference. We consider that the employer on that contract was obliged to pay the difference to the Appellant. We understand she was not paid in full. In our judgment the Appellant was entitled to the full sum of money. Counsel agree with us that the sum is £1,731.60 and we will order that the Respondent pays this sum to the Appellant..[7]We understand from Counsel that having heard the judgment thus far, they ask us by consent to withdraw the Appeal on terms which they have agreed and with which this Tribunal need not be concerned. We are content to follow this course.