MRS SUSAN FOY AS CHAIRPERSON OF THE COMMITTEE OF WEAVER COMMUNITY PLAYGROUP v MRS KERRY BRZEZICKI [2000] UKEAT 355_00_2106
[1]APPEARANCES For the Appellant Appellant neither Present or Represented JUDGE ALTMAN This is an appeal from the decision of the Chairman sitting alone at Liverpool on 21 January 2000. It comes before us by way of preliminary hearing to determine if there is a point of law to justify full argument before the Employment Appeal Tribunal.[2]The Respondent left the employment of the Appellants without notice. She alleged in her Originating Application that on 9 September she was told that she did not need to finish to work her notice. She later decided to finish there and then and to obtain a cheque to cover her notice period. She did leave without working her notice. In paragraph 2.3 of the extended reasons it is put in the following way: - "On Friday 10 September 1999 she telephoned Mrs Gerrard and said that she had decided that she wanted to finish straight away. Mrs Gerrard agreed that she could obtain a cheque from the treasurer for six weeks pay, in other words that she could be paid in lieu of notice."[3]On the face of the decision it seems to us that with further necessary investigation there may well be an arguable point of law as to whether there was a concluded agreement that although the Appellant was not having to work her notice, she was going to be paid for it. On one hand, if an employer is willing to pay for the period of notice then the employer has the initiative to say to an employee that she need not attend her work. On the other hand, on the face of it, in this case the employee has terminated her employment forthwith, but been able to retain her pay for the notice period. In that the Employment Tribunal described it as "pay in lieu of notice", which is normally the damages paid by an employer for his summary termination of contract in breach of the contract employment, we are left puzzled as to the factual basis for the finding in paragraph 2.3 and as to whether that finding is arguably wrong in law. Was there a mistake shared by both parties as to the obligation to make a payment in these circumstances? Was there any consideration for any offer there may have been to pay the notice period?[4]Accordingly we consider this matter should be argued in full before the Employment Appeal Tribunal with the assistance of limited notes of evidence. We would ask the Chairman to provide a transcript of his notes of the evidence insofar only as they relate to his findings in paragraph 2.3 of the extended reasons together with any written material including witness statements that deal with that particular exchange and conversation. The matter will be listed for hearing in category C for ½ day. Skeleton arguments to be furnished not less than 14 days before the hearing.[5]We appreciate that objectively speaking the amount at stake is small but it appears to be important in this particular case to both parties.