1ST CLASS EMPLOYMENT SERVICES LTD v MR N CECIL [2002] UKEAT 1339_01_1705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1339_01_1705Case No Appeal No. EAT/1339/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1ST CLASS EMPLOYMENT SERVICES LTDAPPELLANTMR N CECILRESPONDENT
Before
Mr Justice Wall Mr I Ezekiel Mr D NormanDate 17 May 2002
[1]APPEARANCES For the Appellant APPELLANT NEITHER PRESENT NOR REPRESENTED MR JUSTICE WALL This is the Preliminary Hearing of an appeal by 1st Class Employment Services against the decision of Mr Coles (sitting alone as Chairman) of the Employment Tribunal held at Manchester on 9 May 2001. Mr Coles initially provided summary reasons but on request provided the Extended Reasons for his decision on 26 October 2001.[2]The decision which he made was that 1st Class Employment Services Ltd had made unauthorised deductions from the wages of the Applicant before the Tribunal Mr N Cecil within the meaning of the provisions of Section 13 of the Employment Rights Act 1996. He ordered 1st Class Employment Services Ltd to pay Mr Cecil the amount of such deductions which he calculated at £305.[3]1st Class Employment Services Ltd did not attend before the Tribunal although they had put in a Notice of Appearance dated 4 May from Mr Cunliffe the Managing Director on behalf of the company with enclosures and other documents which had previously been sent to the Tribunal. Likewise 1st Class Employment Services does not appear before us today but they have presented a Skeleton Argument through their contract manager Mrs Janet Lawton and therefore we deal with the matter on the basis of the documentation before us and the Decision of the Tribunal.[4]The Originating Application by Mr Cecil was a homemade document, in which he alleged change of contract, work withdrawn and unpaid wages. The defence or response put in by the company 1st Class Employment Services Ltd was in these terms and I propose to read it:
"Mr Cecil handed his notice in on Thurs 4-01-01 and asked when he would get any hol pay owed. Mr Cecil was told by Janet Lawton a manager with 1 st Class that because he refused to sign a contract that he is not entitled to any hol pay or standing pay. Mr Cecil had been asked several times to join the company on contract but refused and was made aware of the circumstances of non hol pay or standing pay. Mr Cecil has been very abusive and threatening to Janet Lawton and if this continues I will have no choice but to contact our Solicitors or the Police. Mr Cecils work on his weeks notice was withdrawn after he became abusive and threatening to Janet Lawton."
[5]The matter as indicated came before the Tribunal on 9 May 2001 and the Chairman heard evidence from Mr Cecil. He looked at the documentation and took into account the documentation provided by the company. The Chairman described the Applicant's complaint as the unauthorised deduction from his wages within the meaning of section 13 of the 1996 Act relating to non payment of holiday pay wages and two days stand down time or guaranteed payment and he recorded the argument put forward on behalf of the company that since the Applicant failed to sign the written contract he was not entitled to the benefits that otherwise have been due to him.[6]The Chairman then went on in his reasons:
"Having considered the evidence of the applicant and the relevant documentation, however, the Tribunal was satisfied that a verbal agreement had been entered into between the applicant and the respondent before he commenced working for them under which it had been agreed that the applicant would be working under certain terms and conditions of employment which included entitlement to holiday pay and "stand-down" pay. The fact that the applicant for his own reasons did not sign the written contract of employment does not prevent a contractual situation arising between him and the respondent under which the benefits which he claims were due to him."
The Chairman then went on to record the evidence given by Mr Cecil as to the sums which he alleged were due to him and recorded that there was no one from the Respondent organisation either to challenge his evidence to the Tribunal or to give oral evidence to the contrary and accordingly the Chairman went through the complaints making the various calculations required and as I indicated earlier came up finally with the sum of £305 owed by the Respondent to Mr Cecil.[7]In its Skeleton Argument put forward today Mrs Lawton on behalf of the company makes a number of complaints. She says that drivers were not automatically entitled to holiday pay. The working time regulations stated that "we are not legally obliged to pay holiday pay or "stand-down" pay to drivers" and she attached a copy of the regulations. She then went on to say that the company issued contracts to drivers who show they have commitment to the company ie they complete full weeks and are available Monday to Friday each week. Mr Cecil, she said did not complete a full week for thirteen weeks employment taking occasional days off also not being contactable on occasions. She drew attention to the attached record of employment for the final thirteen weeks of Mr Cecil's employment with the company. She said that the only drivers who signed the contract would accrue and be paid holiday pay. She dealt with the rates in relation to VAT. She then having dealt with a number of calculations said:
"Had Mr Cecil signed the contract he would only have been paid £135.00 less deductions."
She also criticised the amount claimed for "stand-down" days. She therefore disagreed with the calculation but the fundamental point remained that the company was not liable under her argument for money until he had actually signed the contract. Finally with regards to section 13 of the 1996 Act she said that Mr Cecil was not incorrectly paid for the period concerned, he had not accrued holiday pay or stand down pay and therefore no deduction was made from his wages intentionally or in error.[8]In our view the Chairman was perfectly entitled to find as he did that there was an oral contract between Mr Cecil and 1 st Class Employment Limited and he was perfectly entitled as he did to accept the evidence which Mr Cecil gave to him. In these circumstances he was in our view perfectly entitled to make the calculations which he did on the basis of the contractual terms of an oral nature which he found existed between Mr Cecil and the company and to reach the conclusion that he did. In our view it is now simply too late for the company to seek to say the Chairman was wrong on the basis that there was no written contract and therefore no appropriate contractual terms before the payments which the Tribunal Chairman found were due to Mr Cecil[9]It is of the upmost importance if issues are to be resolved and if they are to be resolved on evidence that this is done at the Tribunal stage. Accordingly in the absence of any proper evidence from the Appellant, the chairman was entitled in our view to draw the conclusions he did and to award the sums he did. In our judgment the attempt at this stage to admit into evidence for the purposes of this appeal different instructions and contrary documentation is inappropriate and inadmissible. In our judgment since the Chairman was clearly entitled to reach the view he did, on the material he had available this appeal stands no prospect of success. There is no arguable point of law. There is nothing which can be faulted in the judgment of the Chairman and in these circumstances we see no purpose in allowing this appeal to go forward to go to a full hearing and it will be dismissed at this stage.