BERKSHIRE LINEN SERVICES LIMITED v MISS S C CRITTENDEN [2008] UKEAT 0017_08_2404

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0017_08_2404Case No Appeal No. UKEAT/0017/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BERKSHIRE LINEN SERVICES LIMITEDAPPELLANTMISS S C CRITTENDENRESPONDENT
Before
His Honour Judge Peter Clark Mr T Haywood Mr D J JenkinsDate 24 April 2008
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY Unlawful Deduction from Wages One week's pay in hand. Whether paid. SSP - whether the position on the facts was whether Miss Crittenden was owed one week's SSP. Appeal allowed in part. HIS HONOUR JUDGE PETER CLARK This appeal has been permitted to proceed to a full hearing before a full division of the Employment Appeal Tribunal by order of Langstaff J dated 11 January 2008. The amount at stake is £214. The parties are Miss Crittenden, Claimant, and Berkshire Linen Services Limited, Respondent. We shall so describe them.[2]The appeal is brought by the Respondent against the judgment of an employment judge, Mr R Barrowclough, apparently sitting alone, on 10 September 2007 at the Reading Employment Tribunal.[3]The Claimant, by her form ET1, had made two claims against her former employer, the Respondent: a claim for one week's pay in lieu of notice, and a further week's pay by way of unpaid wages. The first claim was dismissed; the second upheld, by a judgment, with reasons promulgated on 28 November. The judge quantified the claimant's loss at £214 less income tax and national insurance.[4]Before the tribunal the Claimant appeared in person and the Respondent was represented by its managing director, Mr Hussain. On appeal the Claimant has played no part and has been debarred from taking any further part in the appeal proceedings by order of the Registrar dated 19 March 2008. That does not mean that the appeal automatically succeeds. It is first necessary for the Respondent to demonstrate an error of law on the part of the employment judge. Mr Hussain does not appear today. He relies on written representations, namely his letters to the EAT dated 18 and 24 September 2007, and correspondence passing between himself and the Claimant and her advisor, West Berkshire Citizens Advice Bureau, which is within the bundle and which we have read.[5]The Judge found, reasons paragraph 3.2 that on the balance of probabilities the Claimant's week-in-hand payment at the end of her service was not paid; hence an unlawful deduction from wages had been made by the Respondent. Mr Hussain takes issues with that finding. He accepts that the Claimant, whose employment commenced on 30 October was paid a week in hand, or, more accurately, we would say, a week in arrears, but that she ceased work on 8 March 2007 following an alleged assault by a fellow employee; that he sent her a cheque for the week ending 9 March 2007 via a friend who was also employed by the Respondent and thus had paid wages, held by the Judge to have been unlawfully deducted, for that week. Two weeks' sick pay at the statutory sick pay (SSP) rate was then paid for the weeks ending 16 and 23 March. The Claimant resigned on 26 March in circumstances in which the judge held she was not entitled to notice pay.[6]Appeals to the EAT are on points of law only and Mr Hussain objects to having to make what, on his case, is a double payment of wages for the week ending 9 March 2007. That complaint can only give rise to a proper ground of appeal, it seems to us, if the judge's finding was one which was unsupported by evidence, contrary to the whole of the evidence or logically inconsistent (see particularly Steward v Cleveland Guest (Engineering) Limited [1994] IRMR 440, paragraph 33 per Mummery P.).[7]We agree with the Respondent that there is a logical inconsistency in the employment judge's reasoning. At paragraph 3.2, he said:
"I am satisfied, however, that the Claimant is owed the 'week-in-hand' wages she claims. The critical payment was that on 16 March for 32 hours, amounting to £155.99. It seems to me that must have represented payment for the four days' actually worked culminating on Thursday 8 March; rather than the full 'week in hand' to which she was entitled. Neither of the final two payslips tallies with the agreed arrangement, and accordingly I find on the balance of probabilities that the Claimant's 'week in hand' due was not paid, and I order the Respondent to pay her £214, less tax and National Insurance deductions."
[8]Since 8 March was the Claimant's last day of work before gong off sick, it follows that the payment on 16 March represented payment for the last week or part week of work at the ordinary rate of pay. However, that is not the end of the story. The claimant put in sick certificates for the weeks commencing 12, 19 and 26 March. She received two weeks' SSP, on the Respondent's case, at the rate of £70.05 per week. That leaves the final week, commencing 26 March, when the Claimant handed in one week's notice. We do not disagree with the employment judge's finding at paragraph 3.1 that she was not entitled to full-notice pay. She was, however, entitled to be paid SSP during her one week's notice ( Notcutt v Universal Equipment Co (London) Limited [1986] ICR 414, 418 D-H, per Dillon LJ).[9]That week's SSP in arrears has remained unpaid, on the Respondent's case. Accordingly, we shall allow the appeal to the extent that the employment judge's award is reduced from £214 to £70.05, being one week's unpaid SSP.