MISS J S NEGUS v MR MARTIN COZENS [2001] UKEAT 1260_00_2303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1260_00_2303Case No Appeal No. EAT/1260/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS J S NEGUSAPPELLANTMR MARTIN COZENSRESPONDENT
Before
Mr Justice LindsayDate 23 March 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a Preliminary Hearing the appeal of Miss J S Negus in the matter Negus v Cozens. It is now almost 10 minutes past 2:00 in the afternoon. The matter was listed to come on at 10:30 and the position is that no one attends for Miss Negus. Although the usher has sought to make contact with the Citizens Advice Bureau who were understood to be intending to represent Miss Negus, we have not been able to make any effective contact.[2]The position is that on 3 April 2000 Miss Negus lodged an IT1 for unfair dismissal, notice pay, redundancy pay and holiday pay. She said that she had been employed to March 2000. On 26 April the employer, Mr Cozens, who was an individual employer, lodged his IT3. On 8 August 2000 there was a hearing at the Employment Tribunal and on 16 August the decision was sent to the parties. It was the decision of the Employment Tribunal at London South under the Chairmanship of Mr D M Booth. Miss Negus had appeared by Mr Saddler of Kingston CAB and Mr Cozens had been in person. The unanimous decision of the Tribunal was:
"that the Respondent should pay to the Applicant - (a) a redundancy payment of £1995.00 (b) notice pay of £420.00 (c) holiday pay of £294.00. A total of £2709.00. The decision continues: "
In respect of notice pay and holiday pay the Respondent may satisfy this order by payment of a sum net of income tax on proof to the Applicant that tax has been paid in respect of those sums to the Inland Revenue. The complaint of unfair dismissal is dismissed."[3]On 13 September 2000 a notice of appeal was received by the Employment Appeal Tribunal. Putting matters very broadly it said at its paragraph 6:
"The grounds upon which this appeal is brought are that the industrial tribunal erred in law in that: {then the Appellant is invited to set out the matters relied upon. It said simply this:] The interests of justice were not served. The chairman got his figures wrong and I did not receive my due award."
We have received a commendably brief skeleton argument that amplifies those points and it says: "The Chairman in working out how much the Appellant was entitled to made mathematical errors in the notice pay and holiday pay award. He had agreed the Appellant was entitled to 7 weeks' notice pay and had already received 4 weeks so was therefore entitled to an extra 3 weeks, but only awarded 2 weeks. He also stated that notice pay was taxable which the Appellant disagrees with. The Appellant was claiming unpaid holiday pay of 6.2 weeks, but the Chairman only awarded just over 1 week.. The Appellant is claiming £3703.80 instead of the Tribunal award of £2709.[4]Let us look at the holiday pay position. The Tribunal said in its paragraph 8:
"The firm's leave year ran from 1 April to 31 March and Miss Negus was allowed 17 days paid holiday per annum. There might have been a point under the directive about that but that is a finding of fact which we have no reason to disbelieve in this particular matter and, of course, no one is here to show us to the contrary. Going on, and the Tribunal comments on the rather inadequate information it was given. The Tribunal said: "
Doing the best we could with such scant information we calculated that she [that is Miss Negus] had had 3 extra days holiday at Christmas plus her week away; that she had been paid for 2 days holiday and therefore had been paid for 10 of the 17 days holiday due, leaving holiday pay for 7 days owing. So the position is, she has 17 days holiday pay, she had had 3 extra days holiday at Christmas, so one takes off 3, plus a week away so one takes off another 5 so that takes away 8 days. She had been paid for 2 so that leaves 7 days and here the Tribunal awards her on the basis of 7 days left. The Tribunal said:
"We have found as a fact that she was owed 7 days holiday pay, her daily rate was £42.00 and therefore Mr Cozens must pay her £294.00."
Well, £42.00 is a fifth of £210.00, which is what her weekly pay was, and £294.00 is 7 times 42. So it would seem that the computation was not ungenerous to Miss Negus. So far as concerns the claim that she was really entitled to 6.2 weeks of holiday pay, there is no finding of any entitlement to that length of time as holiday and it is implicit in the Tribunal's holding that she had not had a holiday in 1998 that she had been rewarded instead with extra holiday in 1999. The Tribunal says:
"She further claimed that she had not had any holiday in 1998 so that she could take more in 1999 when she was convalescing after an operation."
So, doing the best we can with the information that we have got and in the absence of any more specific argument, we do not find any error of law in the holiday pay computation.[5]So far as concerns pay in lieu of notice, the employer was held to have given some notice to his employees including Miss Negus. In paragraph 5 the Tribunal said:
"On 26 February at a time when all the staff were in he met them individually and told them that the business would have to close on 25 March and that their employment would end on 24 March. He did not give them notice in writing but having considered the evidence we accept that what was said left his employees in no doubt their employment would end at the close of business on 24 March."
The Tribunal found that Miss Negus was entitled to 7 weeks notice. She was given and worked for 4 of those 7 weeks and that left 3 weeks. Of the 3 weeks, she was paid for 1 and that left 2. The Tribunal said:
"Because of her length of service she was entitled to 7 weeks' notice. As we found she was given 4 weeks' notice and paid 1 weeks' pay in lieu of notice, she is therefore owed 2 weeks pay = £420.00."
There does not seem to be an error of law on that part of the case.[6]So far as concerns tax, it has not been developed in front of us but we do not see any error of law in the passage which was added to the decision and which indicated that the sum might be paid net if the Respondent could show that tax had been paid in respect the sums in question to the Inland Revenue.[7]So, no one has attended. We have had to do the best we can with the papers and in those papers we have found no error of law and accordingly we dismiss the appeal even at this preliminary stage.