WILF GILBERT (STAFFS) LIMITED v MR P BUNN [2008] UKEAT 0547_07_1706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0547_07_1706Case No Appeal No. UKEAT/0547/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
WILF GILBERT (STAFFS) LIMITEDAPPELLANTMR P BUNNRESPONDENT
Before
His Honour Judge BurkeDate 17 June 2008
The employee was suspended without pay when dismissed for refusing to work on Mondays when he was contractually obliged to do so. The employer appealed against the award as an unlawful deduction of wages during the suspension without pay. Held that the Employment Tribunal had, on the hypothesis that there was a contractual right to suspend without pay, correctly held that the statutory disciplinary and dismissal procedure applied, at least as to Step 1, and had not been complied with; and that on the terms of the relevant document, in the circumstances the employer could not lawfully exercise that right. Therefore the employee was entitled to his wages, less any deduction in respect of Mondays, pursuant to Miles v Wakefield , the extent of which was remitted to the Employment Tribunal to ascertain.The Employment Tribunal erred in failing to consider what uplift on the sum unlawfully deducted should be made pursuant to Section 31 of the Employment Act 2002.

HIS HONOUR JUDGE BURKE QC

The Nature of the Appeal

This is an appeal by Wilf Gilbert (Staffs) Limited, whom we shall call "Gilberts", the employers, and a cross-appeal by Mr Bunn, the employee, against a judgment of the Employment Tribunal sitting at Birmingham, chaired by Employment Judge Kearsley and sent to the parties with written reasons on 3 September 2007.Mr Bunn was employed by Gilberts as a betting shop manager from February 2002 until his dismissal for misconduct in September 2006. He claimed he had been unfairly dismissed both substantively, pursuant to s98 of the Employment Rights Act 1996 , and automatically, pursuant to s98A(1) of that Act, that he had been the victim of sex discrimination, for wages unlawfully deducted and for holiday pay.The sex discrimination and automatically unfair dismissal claims were dismissed by the Tribunal which found, however, that Mr Bunn had been unfairly dismissed but that, had Gilberts acted fairly, he would have been fairly dismissed, in any event, six weeks later. So, Mr Bunn obtained a very limited compensatory award in addition to his basic award for unfair dismissal.The holiday pay claim was agreed; and the Tribunal found for Mr Bunn on his unlawful deductions claim and awarded him in respect of that claim £757.71. Gilberts appealed against the Tribunal's conclusions on several fronts; but at the sift stage of the Employment Appeal Tribunal's procedures they were permitted to proceed to a full hearing only on the grounds set out in paragraphs 1 to 5 and 17 to 18 of their Notice of Appeal, all of which paragraphs are directed at the Tribunal's decision on the unlawful deductions claim which, Gilberts argue, should have failed.Mr Bunn's cross-appeal goes to the same issue. He claims that the sum awarded under this head should have been increased, pursuant to s31 of the Employment Act 2002, in the light of Gilbert's failure to comply with the statutory dismissal and disciplinary procedures.Thus, we are concerned to day only with the correctness or otherwise of the Tribunal's decision to award Mr Bunn, on his unlawful deductions claim, the sum to which we have referred. It is not surprising in the circumstances, with such small sums involved, that the parties have been represented today, in the case of Gilberts, by Mr T Gilbert who is a senior manager and, in the case of Mr Bunn, by Mr Andrews who we understand to be a non-practising barrister who works for or with Coventry Law Centre. We are grateful to both for their intelligent and helpful submissions.

The facts

It is not necessary for us to go in detail through the facts as found by the Tribunal in their extensive judgment. For present purposes we can set out the few relevant facts very briefly. Mr Bunn, at some stage after his employment, reached an understanding with one of Gilberts' managers, Donna Matthews, that he would not work on Mondays so that he could be responsible on that day for childcare while his wife worked. The Tribunal described that arrangement as an accommodation in paragraph 5 of their judgment.In April 2004, after taking time to study it, Mr Bunn signed a new document setting out the terms and conditions of his employment. That document said:
"The company's standard week is Saturday to Friday. You currently work 4 week days and 1 Saturday per week.
In general, your normal hours of work are between the hours of 10am and 6pm Monday to Saturday inclusive and 11am to 6pm on Sunday or such other hours as shall be the company's normal working hours from time to time together with such additional hours as are reasonably necessary for the proper performance of your duties. You are also expected to work some nights in order to cover night racing for which overtime is paid in accordance with your overtime policy."but the Tribunal found that Mr Bunn did not normally work on Mondays. They accepted his evidence that he worked on Mondays at the most five times during the four years and more of his employment.The terms and condition document on the third page against a side heading, "Staff Handbook" said this:
"The Staff Handbook contains further explanation of all terms of employment although this Written Statement of Terms will prevail in the event of a conflict."
Whether those words rendered the staff handbook a contractual document is debatable. The staff handbook, at Section 9, contained Gilberts' disciplinary and appeals procedure. Section 9 contained a number of paragraphs numbered from 0 to 9.7 which set out various aspects of the disciplinary and appeals procedure and, at paragraph 9.5, provided as follows:

"Suspension

In appropriate cases, members of staff may be suspended on either Full pay, Half Pay or No pay pending a disciplinary hearing."And, at paragraph 9.7, said:

"Status of Disciplinary Procedure

The disciplinary procedure is not a contractual entitlement. We may amend it from time to time and may elect not to follow it."On 2 September 2006, at about 5.30pm, Mr Bunn was given his shift rota for the next two weeks which listed him for work on Monday, 11 September. Various discussions between Mr Bunn and Gilberts' managers followed that evening which became confrontational. Mr T Gilbert, when Mr Bunn said that he did not work Mondays, replied, "Well, you do now"; and Mr Bunn replied along the lines of, "I think you are taking the fucking piss and you've got the wrong one, mate".Mr Bunn was suspended without pay that same evening. He was not given any letter setting out why he was going to be suspended before the suspension took effect. On 4 September Gilberts wrote to Mr Bunn inviting him to a disciplinary hearing two weeks later on 18 September, and saying:
"Further to our telephone conversation on Saturday 2 September I confirm your suspension on no pay pending a disciplinary hearing pursing your refusal to work on Mondays as per our conversation. Also to be discussed at the Disciplinary hearing will be your attitude both towards Mr Graham Gilbert and I as well as your general attitude. We will also seek to address the foul and abusive language you use when speaking to me over the phone on the day which I informed you was not going to be tolerated under any circumstances."
After the disciplinary hearing, the details of which are not relevant for present purposes, Mr Bunn was dismissed for refusing to work on Mondays, although he had signed the terms and conditions document which, as we have seen, did not expressly exempt him from being required to work on Mondays, and for using foul and abusive language.The unlawful deductions claim was based on Gilberts' refusal to pay Mr Bunn for the period between 2 September 2006 when he was suspended and his dismissal some three weeks later. It was his contention that Gilberts were not entitled to suspend him without pay. It was Gilberts' contention that paragraph 9.5 in the staff handbook gave them a contractual right to suspend without pay.

The Tribunal's Decision

The Tribunal's resolution of the issue as to whether Mr Bunn was contractually bound to work on Mondays, if asked, was obviously central to the unfair dismissal claim and important, if not central, to the sex discrimination claim. At paragraph 58 of their judgment the Tribunal said this:
"The claimant had a contractual obligation to work on a Monday. The respondents had accommodated him by ensuring that neither he nor his wife worked together on the same day."
At paragraph 64 they said:
"In those circumstances the Tribunal concluded that a fair disciplinary hearing could have been convened within 48 hours of the original hearing but that a reasonable manager conducting that hearing, in the absence of the Gilberts, would have concluded that the swearing merited no more than a final written warning and that the claimant should be put on notice that he be required to work the Monday shift. The Tribunal conclude that an appropriate period of notice would be 4 weeks, whilst acknowledging that the claimant had no contractual right to refuse to work Mondays. The doctrine of custom and practice does not operate between an individual employee and employer and in any event the claimant had signed a contract which included the requirement to work any weekday."
The Tribunal addressed the wrongful deductions claim at paragraph 69 of their judgment in these terms:
"The Tribunal has concluded that suspension without pay was a disciplinary sanction. It is so defined in the Employment Act 2002 (Dispute Resolution) 2004. It was not appropriate for the respondent to suspend the claimant without pay without having first held a meeting and completed the statutory procedure. Accordingly, the respondent has made unlawful deduction of the wages for the period 2 September to the effective date of termination namely 25 September."

Gilberts' Submissions on the Appeal

The submissions put forward in support of the appeal can be summarised as follows:(1) The Tribunal erred in concluding that suspension without pay was a disciplinary sanction within the Employment Act 2002 (Dispute Resolution) Regulations 2004 , therefore the statutory dismissal and disciplinary procedural code set out in part 1 of Schedule 2 of the Employment Act 2002 did not apply to the suspension without pay of Mr Bunn. This ground was withdrawn at the beginning of the argument before us, for reasons which we will shortly explain;(2) Gilberts were contractually entitled to suspend without pay, pursuant to paragraph 9.5 of the staff handbook. Therefore, there was no entitlement to pay during the suspension period. A breach of the statutory procedure, if the statutory procedure applied, did not create a right in Mr Bunn to payment during that period;(3) The suspension without pay could only lead to the award of monies claimed to have been unlawfully deducted if those monies were payable. It is not in dispute that they had not been paid and that Mr Bunn had been suspended; but there was a dispute before the Tribunal as to whether those monies were payable.Mr Gilbert put forward two submissions in relation to that; the first was that, pursuant to the doctrine established or confirmed by the House of Lords in Miles v Wakefield Metropolitan District Council [1987] ICR 368, Gilberts were not bound to pay for any Monday on which Mr Bunn refused, or was going to refuse, to work had he not been suspended; and, therefore, on any view the amount of the award should have been reduced pro rata to reflect the absence of liability in Gilberts to pay Mr Bunn for any such days. Secondly, in reliance on the subsequent Court of Appeal decision of Wiluszynski v Tower Hamlet Borough Council [1989] ICR 493, Mr Gilbert submitted that by refusing to work on Mondays, if asked, Mr Gilbert was offering only partly to perform his contractual obligations and refusing to perform the entirety of his contractual obligations and that that gave Gilberts an option either to permit him to work when he was willing to work and pay him only for when he was so willing, or to tell him that part performance was not acceptable, to refuse to accept such performance, to send him away from work altogether and to refuse to pay him at all until, of course, he began to work according to his contract. On the basis of that doctrine it was said by Mr Gilbert that no monies at all should have been awarded under the unlawful deduction claim because none were due since Mr Bunn was only offering to work by way of part performance.Finally, Mr Gilbert, in his skeleton argument, submitted that the disciplinary dismissal procedures did not apply because Mr Bunn was at the time of his suspension and dismissal either on strike or taking industrial action. Mr Gilbert has expressly disavowed that ground of his appeal before us today.

The Submissions for Mr Bunn

(1) Mr Andrews submitted that the provision in the staff handbook for suspension without pay was not contractual; therefore Gilberts had no right to suspend Mr Bunn without pay. Mr Bunn was in employment throughout the period of his suspension and entitled to his earnings in respect of the suspension period; therefore the Tribunal were right to award him wages unpaid during that period;(2) If the relevant provision in the staff handbook had any contractual effect, Gilberts had to establish either that it was appropriate, or that they had reasonably considered whether it was appropriate, in the circumstances, to suspend without pay as opposed to suspending on full or half pay and that their decision to suspend without pay was a reasonable one, but the Tribunal had decided that it was not appropriate for them to suspend without pay, in paragraph 69 of their judgment;(3) in any event, the Tribunal erred in concluding that Mr Bunn was obliged to work on Mondays, if instructed to do so;(4) the application of the principle in Miles v Wakefield would have led to the conclusion that Mr Bunn would have been entitled to no pay for the period when he was not working, but on the facts he would only have refused to work in the relevant period on one Monday, at its highest, he being paid by the week. Only one week therefore could have been deducted at the maximum, and in reality only one day, because the suspension without pay was not a rejection of part performance.It is necessary and fair to say that those submissions have been refined by us in the course of argument so as, we hope, to reach the form in which we have just set them out.

The Statutory Provisions

The Employment Act 2002 , by s29, introduced statutory dispute resolution procedures which, for present purposes, take effect by Schedule 2 of that Act, Part 1, Chapter 1 of which sets out the standard dismissal and disciplinary procedure. It is necessary for us to set out only paragraphs 1 and 2 of that procedure which contains Step 1 and Step 2 thereof, in these terms:

"1

Step 1: statement of grounds for action and invitation to meeting

(1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.2

Step 2: meeting

(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless—

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and(b) the employee has had a reasonable opportunity to consider his response to that information.(3) The employee must take all reasonable steps to attend the meeting.(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it."Pursuant to the 2002 Act there came into existence the Employment Act 2002 (Dispute Resolution) Regulations 2004 . Regulation 2, the interpretation provision, defines "Relevant disciplinary action" as:
"… action, short of dismissal, which the employer asserts to be based wholly or mainly on the employee's conduct or capability, other than suspension on full pay or the issuing of warnings (whether oral or written)."
Regulation 3.1 provides as follows:
"3 (1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee."
The consequences of non-compliance with the statutory procedures are spelt out at Regulation 12, but it is not necessary for us to say more about that Regulation than it does not provide any assistance upon the issues which we have to decide. In the case of dismissal, where there has been a failure on the employer's part to comply with the relevant statutory procedures, s98A(1) of the 1996 Act provides that the dismissal is automatically unfair. There is no corresponding section which applies to action short of dismissal which falls within the requirements of the statutory procedures.Finally, s31 of the 2002 Act provides as follows:

"31

Non-completion of statutory procedure: adjustment of awards

(1) This section applies to proceedings before an employment tribunal relating to a claim under any of the jurisdictions listed in Schedule 3 by an employee.(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,(b) the statutory procedure was not completed before the proceedings were begun, and(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employee— (i) to comply with a requirement of the procedure, or(ii) to exercise a right of appeal under it, it must, subject to subsection (4), reduce any award which it makes to the employee by 10 per cent, and may, if it considers it just and equitable in all the circumstances to do so, reduce it by a further amount, but not so as to make a total reduction of more than 50 per cent.(3) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—(a) the claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,(b) the statutory procedure was not completed before the proceedings were begun, and(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure, it must, subject to subsection (4), increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.(4) The duty under subsection (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances."It is not in dispute that a claim for unlawful deduction is a claim under one of the jurisdictions listed in Schedule 3 to the Act; and, therefore, Section 31 of the Act applies to the claim which we are now considering.

Our Conclusions on the Appeal

The first submission made on behalf of Gilberts, that suspension without pay is not a disciplinary sanction falling within the 2004 Regulations, must be rejected. The words of the definition of relevant disciplinary action in Regulation 2, namely "action short of dismissal which the employer asserts to be based wholly or mainly on the employee's conduct or capability other than suspension on full pay, or the issuing of a warning" make it wholly plain, in our judgment, that suspension without pay was intended to fall within that definition. Suspension with pay has the effect of removing the employee from his workplace, but not from his remuneration. Suspension without pay removes the employee from both. That is no doubt why suspension with pay is expressly excluded from the definition of relevant disciplinary action, but suspension without pay is not so excluded. The express exclusion of the lesser sanction, in our judgment, but not the greater, is the clearest possible indication that the greater was intended to be included within the scope of Regulation 3.1.Indeed the Employment Appeal Tribunal has already come to precisely that conclusion in Masterfoods v Wilson [2007] ICR 370. The employee in that case was suspended without pay prior to disciplinary proceedings. The statutory procedures were not complied with prior to that suspension and prior to the employee's subsequent dismissal, which was found to be automatically unfair. The Employment Appeal Tribunal, presided over by HHJ McMullen QC, in a passage which is admittedly obiter dicta but, nonetheless, provides valuable guidance, said at paragraph 65:
"The consequences of a breach of any of the procedures arise when proceedings are brought before an Employment Tribunal. The proceedings which are regulated by these disciplinary procedures are those set out in Schedule 3 to the Act. The definition of relevant disciplinary action, as we have cited (para 3) above, includes disciplinary action short of dismissal. Since suspension on full pay is excluded from relevant disciplinary action it follows that suspension without pay is not. Step 2 expressly envisages suspension as a form of relevant disciplinary action and makes an exception of it."
We can see no reason to disagree and, indeed, we expressly agree, with that passage; and when we drew Mr Gilbert's attention to the decision in Masterfoods v Wilson he, with good grace, did not pursue this ground of appeal.Mr Gilbert's second submission originally appeared to us to be more attractive. The Tribunal do not at any point in their judgment expressly set out their conclusion as to whether paragraph 9.5 of the staff handbook did or did not, have contractual effect, and it might seem, on one reading of paragraph 69, that the Tribunal had proceeded from the correct conclusion that suspension without pay was a relevant disciplinary action to which the statutory disciplinary and dismissal procedures applied, to the conclusion that, because that procedure had not been complied with, Mr Bunn was, as a result, entitled to his wages for the period of suspension.If that had been the Tribunal's thought process it would have been an erroneous one. Although by virtue of s98A(1) of the 1996 Act, as we have already pointed out, a failure to comply with the statutory procedure before dismissal renders the dismissal automatically unfair, there is no such provision which entitles an employee to a remedy where there has been a failure to comply with that procedure in respect of action short of dismissal. The only statutory sanction available to such an employee is that of an uplift in an award, under s31 of the 2002 Act; but there can be no uplift unless the employee has an entitlement to an award, which entitlement the failure of the employer to comply with the statutory procedure in the case of action short of dismissal does not of itself create. Any entitlement to payment of wages for the suspension period in this case could only arise under the terms of the contract of employment. However, under the contract of employment Mr Bunn was, subject to Mr Gilbert's third submission to which we will shortly come, entitled to be paid for weeks in which he was employed, suspension or no, unless Gilberts were contractually entitled to withhold such payment.The only potential contractual provision on which Gilberts could rely was paragraph 9.5 of the staff handbook which, as we have seen, permitted Gilberts to suspend without pay only in an appropriate case. Was that provision part of the contract of employment? If so, was this an appropriate case for suspension without pay? It is to be noticed that the Tribunal, in paragraph 69, having concluded that suspension without pay fell within the 2004 Regulations, immediately went on to say:
"It was not appropriate for the respondent to suspend the claimant without pay without having first held a meeting and completed the statutory procedure."
We can see no reason to regard the Tribunal's use of the word "appropriate" as a coincidence. In our judgment the Tribunal were saying perhaps elliptically, at the end of a long judgment in which they had dealt with matters which must, during both the hearing and during their decision-making process, have seemed potentially much more significant than the wrongful deduction claim, that if paragraph 9.5 of the staff handbook was contractual (and they had specifically referred to that paragraph and to Gilberts' assertion that it was contractual at paragraph 34 of their judgment) the power to suspend without pay was only exercisable in an appropriate case and that they found on the facts that this was not such a case.Mr Gilbert has pointed out correctly that a Step 2 meeting, as prescribed by paragraph 2 of the standard dismissal and disciplinary procedure, is not required to be complied with where the disciplinary action consists of suspension. That is expressly so pursuant to paragraph 2.1 of chapter 1 of Part 1 of Schedule 2; but that does not eliminate, in our judgment, the requirement of a Step 1 letter as prescribed by paragraph 1 of the standard procedure. We do not accept Mr Gilbert's submission that such a letter can be provided after the suspension has started and was therefore to be found in the letter written by Gilberts to Mr Bunn on 4 September. The words in paragraph 1.1 of the standard procedure:
"The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee."
And the words in Regulation 3.1 of the 2004 Regulations:
"… the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee."
make it plain, in our judgment, that the Step 1 letter must be provided by the employer when he is contemplating suspension and before he turns that contemplation into action, thus giving the employee the opportunity to seek to argue that he should not be suspended without pay, or at all, before the suspension becomes a fact.It appears that the Tribunal mistakenly believed that a Step 2 meeting was a requisite of the standard procedure in a suspension case; but Mr Gilbert has frankly accepted that he did not draw the Tribunal's attention to the words of the procedure which demonstrate that that is not so. The point is one which he has, resourcefully, appreciated later. But, in any event, in the absence of a Step 1 letter the required procedures had not been completed. The Tribunal were right to find that they had not been completed; or at least it was open to them so to find; and we have no doubt that the absence of a requirement for a Step 2 meeting would not have made any difference to the Tribunal's conclusion, which was a factual conclusion open to them as the fact-finding Tribunal.On this basis it was, therefore, unnecessary for the Tribunal to decide whether paragraph 9.5 of the staff handbook was, or was not, contractual. Our analysis of paragraphs 6 to 9 of their judgment explains why they did not do so, although we feel bound to say that Gilberts would have found themselves in substantial difficulties in seeking to establish that that paragraph was contractual.We turn, therefore, to Mr Gilbert's third point, arising from the application of the doctrines in the two authorities to which we have referred to cases where an employee is offering only partly to perform his contractual obligations.Mr Gilbert has, additionally to his reliance on Miles v Wakefield and Wiluszynski , relied upon the decision of Mr Bernard Livesey QC, sitting as a Deputy Judge of the Queens Bench Division, in RDF Media Group Plc and Another v Clements [2007] EWHC 2892 (QB) 5 December 2007. He submits that the effect of that decision is that Mr Bunn's refusal to work on Mondays, being a fundamental breach of contract, debarred him from relying on any breach of contract of Gilberts' part.We will address his three points in reverse order. The effect of the passages at paragraphs 140 and 141 of Mr Livesey QC's judgment is, as we see it, not that for which Mr Gilbert contends. It is that, if one party is himself in repudiatory breach of a mutual contractual obligation, he is not entitled to accept the other party's subsequent conduct as amounting to an acceptable repudiation. There is, in our judgment, no principle that a party to a contract, who is himself in repudiatory breach of that contact (and we will for the purposes of this discussion assume that refusing to work on the occasional Monday was a fundamental breach although there must be some doubt as to whether that assumption is supportable) which breach has not been accepted, cannot assert that the other party has also committed a breach of contract and seek a remedy in respect of it. In any event Mr Bunn was not seeking a remedy for breach of contract but asserting his right to money due under a contract which was still in existence throughout the suspension period.As to the second point, Mr Gilbert has accepted that there was no evidence before the Tribunal that Gilberts would have refused to allow Mr Bunn to work at all because of his refusal to work on one Monday, or on Mondays, absent of course the suspension. We have no doubt that, if this point was argued before the Tribunal, the Tribunal would have been bound to have rejected it in the absence of such evidence, unless the suspension without pay was itself sufficient; but in our judgment it clearly was not. As the letter of 4 September shows Mr Bunn was suspended pending a disciplinary hearing; Gilberts were not refusing to accept part performance of his obligation.The first of the three points under this head has, however, troubled us to a greater extent. Mr Gilbert has said, with some hesitation and diffidence we feel bound to say, that the Miles v Wakefield point was taken before the Tribunal, although no reference was made to that authority or indeed, as we understand it, to any authority. The Tribunal did not address any such point, nor indeed the wider point based on Wiluszynski to which we have just referred.In those circumstances we would normally have considered proceeding no further with the appeal today and asking the Tribunal to inform us as to whether the point was, or was not, taken before them; but we have considered what are the potential consequences of that course. It seems clear, and Mr Gilbert has not tried to suggest otherwise, that during the suspension period only one Monday was scheduled or would have been scheduled as a working day for Mr Bunn. If payment in respect of that one day were to be deducted from the amount owed to Mr Bunn something like £50 (plus any uplift, if the cross-appeal succeeds) would have to be the subject of adjustment. Were it not for the course we propose to take on the cross-appeal, we would regard it as wholly disproportionate to remit this case to the Tribunal in order for them to decide whether the point was taken originally before them and if so what, if any, deduction should be made. But, because we are going to have to remit this case to the Tribunal on the cross-appeal, we have decided that, rather than deny Gilberts some relief, however small, to which they might be entitled, it is more appropriate to remit this case to the Tribunal to decide only, in relation to the appeal as opposed to the cross-appeal,(1) whether the point was taken before the Tribunal at the original hearing, for if it was not it certainly cannot be taken now, and(2) only if it was taken to consider whether any reduction from the figure awarded for unlawful deduction should be made in respect of any Monday which Mr Bunn would have been asked to work, but would have declined to work in the suspension period. As we have said, it seems to us, and the facts hardly seem to be in debate, that there was only one such Monday; but that is a matter for the Tribunal to consider on the evidence that they have previously received, unless they decide to receive further evidence, which will be a matter for them.We ought, before departing from this point, to state that Mr Andrews, on behalf of Mr Bunn, sought to persuade us that there was an alternative ground on which the Tribunal's award could be upheld, namely that Mr Bunn was not contractually obliged to work Mondays and the Tribunal's decision that he was was in error of law. However, assuming that Mr Andrews was entitled to argue that point (and it was not in his answer; although he left it open for his answer to be expanded, his answer has not been amended) we have come to the conclusion that that argument cannot succeed. It was open to the Tribunal on the facts to find that there was no binding agreement between Mr Bunn and Donna Matthews that he would not work Mondays but that what had been discussed between them amounted to no more than an accommodation or a concession from which the employers were entitled, on reasonable notice, to withdraw.Furthermore, the Tribunal were entitled, having regard to the fact that Mr Bunn took away the new written statement of terms and conditions in 2004 and signed it, having studied it, which document involved at the same time his agreeing to a new pay rate, to conclude that that written statement of employment set out his terms and conditions and was either a contractual document or strong evidence of the terms of the contract and that those terms did not excuse him from working on Mondays if the employers required. Accordingly, we do not accept that argument, however persuasively it was put before us by Mr Andrews.

Cross-Appeal

We turn therefore to the cross-appeal. We have identified the issue to which the cross-appeal is directed. The Tribunal did not, in paragraph 69, or at any other point in their judgment, expressly consider the making of an uplift upon the award for unlawful deductions under s31 of the 2002 Act. Paragraph 69 makes no reference to s31 or the effect of its provisions, and, on the face of it, it appears that, again at the end of a long judgment dealing with many matters, the Tribunal simply overlooked the application of Section 31 and therefore what Section 31 required of them.Mr Gilbert submits, in his response to Mr Bunn's answer, firstly that the Tribunal did not make a finding of entitlement under s23 of the Employment Rights Act 1996 , secondly that the Tribunal referred at paragraph 49 of their judgment expressly to s31(3) of the Act and set out the requirements of that subsection therefore the Tribunal because they did not make any uplift having directed themselves to consider making an uplift in paragraph 49, must be taken to have concluded that, the circumstances were exceptional, an increase of even 10 per cent was unjust or inequitable and no increase should be made.We do not accept these submissions. There is no doubt at all, in our judgment, that the finding at paragraph 69 that there had been an unlawful deduction of wages and the award of a sum as a result, is a determination under s23 of the Employment Rights Act which attracted, if the procedures had not been complied with, as the Tribunal found they had not, s31 of the 2002 Act. Thus, unless the Tribunal were to conclude that exceptional circumstances applied which rendered it unjust and inequitable to make any uplift at all, or an uplift less than 10 per cent, the Tribunal were bound to grant an uplift of somewhere between 10 and 50 per cent, pursuant to subsection 3 of s31..We cannot regard the Tribunal's silence on the issue of an uplift as amounting to a conclusion that s31(4) of the Act applied as opposed to Section 31(3). A conclusion that there should be no uplift pursuant to s31(4) or a lesser uplift than the standard 10 per cent to 50 per cent uplift prescribed by s31(3) must be the subject of a specific finding and must be supported by specific reasons which demonstrate exceptional circumstances and that it is unjust and inequitable to make an uplift within the standard range. There is no such determination in this case.In our judgment, the omission by the Tribunal to deal with uplift does not indicate that they had decided that there should be no uplift but rather demonstrates that they had simply omitted to deal with uplift. Mr Bunn was entitled to an uplift between 10 per cent and 50 per cent in law, unless s31(4) applied, and the Tribunal have erred in law in not addressing that issue.Nobody has suggested that we could decide what the appropriate uplift should be, despite the slight nature of the sums involved in this case. We must therefore remit the issue of determination of the size of any uplift to the Tribunal for their consideration.

The Result

The appeal is allowed to the limited extent expressed above; and the cross-appeal is allowed to the extent that we have expressed.We do not wish to part from this case without saying a few words about the way forward. We understand that there is to be a further hearing before the Tribunal in relation to costs. We know nothing about that and express no views about it; but we expect that it could be dealt with relatively swiftly. The parties may want to consider very carefully whether, having regard to the very limited sums which are involved in what has been before us today, it would not be better to seek by direct negotiation or through some form of mediation or alternative dispute resolution, to resolve the outstanding issues rather than to have to battle them out again before the Tribunal. We cannot, of course, enforce any such action upon the parties; we do strongly recommend it to both of them.