PHOENIX CATERING LTD v MS J MAYERS [2001] UKEAT 0302_01_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0302_01_1910Case No Appeal No. EAT/0302/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PHOENIX CATERING LTDAPPELLANTMS J MAYERSRESPONDENT
Before
His Honour Judge Peter Clark Mrs R A Vickers Mr G H WrightDate 19 October 2001
[1]APPEARANCES For the Appellant NEITHER PRESENT NOR REPRESENTED For the Respondent NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK The Applicant, before the Mold Employment Tribunal, Miss Mayers, commenced employment with the Respondent, Phoenix Catering Ltd, in November 1998. Following the Applicant's resignation from that employment she presented an Originating Application to the Employment Tribunal on 7 November 2000, claiming one week's pay in hand and two days outstanding holiday pay. It appears that the employment terminated on 11 October 2000. The claim was resisted. In this judgement we shall use the same description of the parties as below.[2]The matter came before an Employment Tribunal chaired by Mr R Jones on 18 January 2001. By a decision with extended reasons promulgated on 6 February 2001 that Employment Tribunal:(1) dismissed the claim for 1 week's pay in hand because the Applicant had not given 2 weeks contractual notice of termination, thereby forfeiting her entitlement to that week's pay in hand (reasons, paragraph 2) and(2) dismissed the claim for 2 days holiday pay on the grounds that she had received all the holiday pay to which she was entitled for the holiday year November 1999 to November 2000 (reasons, paragraph 6), It follows that the complaint as framed by the Applicant failed. However, the Employment Tribunal went on to hold that(3) the Applicant had not received any holiday pay for the year November 1998 to November 1999 and awarded her 3 weeks pay, that is £396, for that period (reasons, paragraphs 7 and 8).[3]Against that decision the Respondent below appealed by Notice dated 21 February 2001.[4]The appeal was listed for preliminary hearing before a division presided over by Nelson J on 15 June 2001. The Respondent did not appear. The Employment Appeal Tribunal adjourned the preliminary hearing on terms that the Respondent produced certain PAYE records and other documents within 14 days. The Respondent complied with that direction and on 22 August 2001 that division permitted the appeal to proceed to this full hearing.[5]The Applicant returned the form of Respondent's Answer in blank, but with a covering letter dated 5 September 2001 which reads:
"Dear Sir/Madam I would like to say I went to Court for my week in hand and Holiday pay which I thought I was entitled to. That went against me on the day. I was surprised as much as Andrew (Crawford, the Respondent's Managing Director) that they awarded me holiday pay for my 1 st year. I agree with Andrew I didn't go for that. I can't prove either way I was paid my holiday. If Andrew can prove that it was paid then that's fine because I can't. As far as I am concern (sic) my case was proved against me on the day it was very distressing for me at the time & would rather not go through a court again for something I didn't ask for."
[6]Today, neither party attends. We have taken into the account the Applicant's letter of 5 September 2001 and the material provided by the Respondent to the Employment Appeal Tribunal, including Mr Crawford's letter dated 16 October 2001 which we treat, together with his earlier grounds of appeal, as his written submissions. From all that is said by both parties it is clear to us that the Applicant did not claim holiday pay for the year ending November 1999. It is also clear that both parties were surprised by the award of 3 weeks holiday pay for a period in respect of which no claim was made. It is essential if the Employment Tribunal is to raise a claim not advanced by the Applicant, that both parties, particularly the Respondent, are given a proper opportunity to deal with it both in evidence and argument. We understand the Respondent's complaint on appeal to be that no such opportunity was given to him. It seems, from her letter, that the Applicant agrees. In these circumstances we have concluded that there has been a breach of natural justice which requires us to allow the appeal and set aside the Employment Tribunal's award. See Laurie & Holloway [1994] ICR 32.[7]The question then arises as to what should be done with this case. We bear in mind the principle of proportionality. The award in this case was just under £400. On the material before us it does appear as a matter of fact that, contrary to the Employment Tribunal's findings, the Applicant did receive all that holiday pay to which she was entitled for the year ending November 1999 and this is not materially disputed by the Applicant.[8]It follows that we shall not remit this case to a different Employment Tribunal for re-hearing of a complaint not raised by the Applicant. Instead we shall allow the appeal and dismiss the Originating Application. We do not believe that any injustice is thereby caused; on the contrary, as the Applicant accepts, in answer to this appeal, the claim which she brought went against her on the day. That is how the matter will now rest.