FAME RECRUITMENT CONSULTANTS LTD v MRS Z SULEMAN [2000] UKEAT 1472_99_0404

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1472_99_0404

Case No Appeal No. EAT/1472/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

FAME RECRUITMENT CONSULTANTS LTDAPPELLANT

MRS Z SULEMANRESPONDENT

Before

Mr Justice Lindsay Miss A Mackie

Date 4 April 2000

[1]APPEARANCES For the Appellant MRS ABRAHAM (Representative) MR JUSTICE LINDSAY We have before us by way of a preliminary hearing the appeal of Fame Recruitment Consultant Ltd against Mrs Z Suleman. On 27 January Mrs Suleman lodged an IT1 claiming unlawful deductions from wages. She described the employer as Fame Recruitment Consultant Ltd. She made a claim for one day's pay at £65.38 (Gross, before Tax and National Insurance contributions) plus two day's pay in lieu of notice, plus £750 for commission. On any footing it was not a very great sum that was being claimed, but, obviously, different parties find different sums worth litigating about and difficult or easy to pay. It was not a very great sum, but that was the sum that was being claimed.

[2]On 15 February 1999, Fame put in an IT3 saying that one day's pay was owed, but that the commission was payable only after a satisfactory two months trial period and that Mrs Suleman had been told that that was the case but had also been told that her trial period was not successful. The IT3 said that the claim for £750 commission was "baffling."

[3]For what it was worth (and I say that because presumably it was drawn up by reference to Fame's instructions) Fame submitted a chartered accountant's report that said that only one days pay was due to Mrs Suleman.

[4]On 22 April 1999 there was a hearing before the Employment Tribunal Mrs Suleman was in person and Mr Abraham, a Director of Fame, attended on behalf of Fame and dealt with the case on behalf of Fame. The witness on the company's side most able to give direct evidence of discussions with Mrs Suleman, namely Mrs Abraham, was unable to attend that day because her children were not well.

[5]On 14 May the decision was sent to the parties and it was the unanimous decision of Mr Roose, Mr Mothersdale and Mr Thomas, sitting at London (North), that the Respondent was Ordered to pay to the Applicant the sum of £728.52 in respect of her claims in contract and for unauthorised deductions from her wages.

[6]The extended reasons say that the Applicant was employed by the Respondent between 23 September and 24 December 1998 as a Recruitment Consultant and that her terms of employment were set out in an offer letter dated 15 September 1998. For the first month the Applicant was paid at the rate of £16,500 per annum but this was increased to £17,000 in the next month. The offer letter provided as follows:- "Commission will be paid after a successful two month trial period based on targets being met on a four weekly period, paid quarterly in arrears."

[7]That is somewhat ambiguous. The offer letter was held to be the relevant terms as far as concerned commission. On one reading, at least, of that, commission was not payable until after a successful two-month trial period.

[8]Mrs Suleman began work on 23 September and so if there was no commission paid until after a successful two-month trial period, meaning that commission was not paid relative to that successful two-month period, then there can have been no entitlement to commission until 23 November. But, of course, Mrs Suleman stopped on 24 December. There was no holding by the Tribunal that the true construction of that offer letter provision was that commission would be paid from the very first day of employment. It is at least arguable, although the letter is ambiguous, that the proper period for commission was from 23 November to 24 December, namely one month. As the Tribunal found that the rate was £750 per quarter, irrespective of targets, one might accordingly expect, perhaps, a third of £750 net to be awarded to Mrs Suleman. But the full £750 was awarded. I should add that the Tribunal said that no targets were set but that the Applicant was assured by Mrs Abraham that she would be paid commission of £750 per quarter irrespective of targets. There is nothing there that in terms says that the Tribunal held that that commission was to be payable from the very first day of employment. As we have mentioned, the offer letter saying that it would be paid after a successful two month trial period arguably suggests that commission did not begin until after that two-month period.

[9]The position was that on 7 July a Notice of Appeal was lodged by it gave no grounds whatsoever. On 7 December time was extended so as to validate the Notice of Appeal. Naturally, it was emphasised that a proper Notice of Appeal had to be completed and on 15 December a letter was received from Fame which, perhaps generously, was regarded as an amended Notice of Appeal.

[10]The Tribunal had to deal with the case as it was laid before it on the day. The difficulties that Fame had in assembling evidence for that day were not indications of any errors of law on the Tribunals part. It does seem as if there was no request for an adjournment on that day because, in his letter of 24 May 1999 to the Employment Tribunal, Mr Abraham, who had appeared on the day, said this:

"The main witness Mrs A Abraham had a problem with two of her small children, aged one and two and a half and it was essential that they were seen to. However, she too, herself had to attend an important meeting, I pointed these out at the time of the hearing. As she was the only one who had private discussions with Mrs Suleman, interviewed her and offered her the position and contract. I believe her testimony is vital to proving our case. As I had previously asked for a postponement of this hearing on 8 March. (it was originally fixed for 6 April 1999.) I felt it would be asking too much of the Tribunal to postpone the case once again and I therefore attended the hearing."

[11]It does then look as if, on the day, there was not a request for an adjournment. The letter of 15 December (serving as a Notice of Appeal) indicates no error of law. There is through the remaining point about possible internal inconsistency or, at lowest, ambiguity in the reasons that the Tribunal gave, namely, the point about whether commission was only after a successful two month period (meaning that the period for which it was payable did not begin until after two months) or was the case that if there was a successful two month trial period then commission was payable for the very first day of employment. If there had to be a successful two-month trial period, was there a finding that the trial period had been successful? We notice that the events have rather disprove that the trial had been successful, but there is no finding on that point.

[12]That ambiguity just (and we say, only just) gives Fame a sufficiently but arguable case to go forward to a full hearing and we do allow it to go to a full hearing. The Notice of Appeal will need to be amended, to make the points which we have identified about ambiguity or possible internal inconsistency in the reasoning of the Tribunal and as to any finding as to a successful trial period. That amendment will need to be made within 21 days after the sending to the parties of the transcript of this judgment. Those are the only grounds that we see as proper to go forward.

[13]If the Notice of Appeal is not amended then the matter will necessarily fail, but, in allowing the matter to go forward in the way that we have indicated, we do urge two things. First of all, if Fame can muster the necessary funds, it would be desirable that if should be professionally represented both in the drafting of the Notice of Appeal and in attendance at the full hearing. It is a disadvantage for a company to have only its Director speaking for it or arranging it in such a matter.

[14]Secondly, and perhaps more importantly, one has to bear in mind that here really quite a small sum is at stake. We urge the parties to consider that. We are not concerned with where blame lies, if blame is the right term. Parties can very easily get at cross purposes and matters can be inflated by litigation in no time at all, but we do ask the parties first to stand back, both of them, and consider that really only a relatively small sum is at stake and that it would be appropriate, if at all possible, that they should settle their differences without coming back and without incurring the further expense and delay and anxiety that is inherent in proceedings.

[15]At this stage we direct that the matter can go to a full hearing, and that the Notice of Appeal is to be amended in the way that we have indicated within the period that we have indicated and we do ask the parties seriously to consider how best to avoid the costs and anxieties that a further hearing will be bound to generate.