WINGS AEROMEDICAL SERVICES LIMITED v MRS M ALDERSON [2008] UKEAT 0411_07_0102
[1]APPEARANCES For the Appellant MR M HAY (of Counsel) Instructed by: Pollard Associates The Old Mill Reedness Road Swinefleet The East Riding of Yorkshire DN14 8EN For the Respondent MS P O'CONNOR (of Counsel) Instructed by: Louise Birmingham Sheppards Solicitors 86 -88 Regent Street Kingswood Bristol Avon BS15 8HY SUMMARY UNFAIR DISMISSAL: Compensation The employee was unfairly dismissed. She did, not work everyday and was paid on a day worked basis; in some weeks she did not work at all because no work was offered. The Tribunal calculated the basic award by applying s224 of ERA and taking the average of the last 12 weeks in which she was paid for work done as the multiplicand. They then used that average figure for their calculation of the compensatory award.[2]The employers argued that the Tribunal should for the first calculation have taken the last week in which the employee was paid and taken the immediately preceding 11 weeks and divided the total by 12. This would have included weeks in which no sums were paid or payable and produced a figure much lower that that used by the Tribunal. They argued that that calculation should have formed the basis of the calculation of the compensatory award.[3]Held that the Tribunal were right to calculate as they did. By s224(3) weeks in which no remuneration was payable were to be excluded. The compensatory award was not necessarily linked to the calculation of the basic award and in this case it was based on the Tribunal's finding of fact as to the amount of future work. Appeal dismissed and the Respondents ordered to pay costs. HIS HONOUR JUDGE BURKE QC "(1) a basic award for unfair dismissal £1,520.70 (2) compensatory award for unfair dismissal, £9,276.27 (3) uplift of 15 per cent for breach of statutory procedures, £1,619.55 (4) compensation for breach of contract, £4,649.42" The facts Section 224 of the Employment Rights Act 1996 "The amount of a week's pay of an employee shall be calculated for the purposes of this Act in accordance with this Chapter." "224. –(1) This section applies where there are no normal working hours for the employee when employed under the contract of employment in force on the calculation date.(2) The amount of a week's pay is the amount of the employee's average weekly remuneration in the period of twelve weeks ending – (a) where the calculation date is the last day of a week, with that week, and (b) otherwise, with the last complete week before the calculation date.(3) In arriving at the average weekly remuneration no account shall be taken of a week in which no remuneration was payable by the employer to the employee and remuneration in earlier weeks shall be brought in so as to bring up to twelve the number of weeks of which account is taken.(4) This section is subject to sections 227 and 228." The Tribunal's decision The grounds of appeal The basic award submissions Conclusions as to basic award Compensatory award submissions Costs