MR I NUTTALL v (1) MR M SZEWCZUK (2) NWT WILLS [2012] UKEAT 0407_11_2702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2012] UKEAT 0407_11_2702Case No Appeal No. UKEAT/0407/11
Between
MR I NUTTALLAPPELLANT(1) MR M SZEWCZUK (2) NWT WILLSRESPONDENT
Before
HIS HONOUR JEFFREY BURKE QC (SITTING ALONE)Date 27 February 2012
[1]APPEARANCES For the Appellant MR I NUTTALL (The Appellant in Person) For the First Respondent For the Second Respondent MR M SZEWCZUK (The Respondent in Person) Debarred SUMMARY CONTRACT OF EMPLOYMENT – Notice and pay in lieu The Employment Judge awarded, among other sums, compensation for wrongful dismissal on the basis of a four-week notice period. However, the contract and notice period, during the employee's probationary period, was (as the employee agreed) one week. Appeal allowed to extent that the sum awarded was reduced appropriately. HIS HONOUR JEFFREY BURKE QC Introduction This is an appeal by Mr Nuttall against the Judgment of Employment Judge Ford at the Bristol Employment Tribunal, sent to the parties on 18 February 2011, with reasons sent on 29 March of that year. The Claimant, Mr Szewczuk, had claimed non-payment of wages, non-payment of money in lieu of notice, and unpaid holiday money. The original respondent was named as NWT Wills. Because it was not clear to the Employment Judge whether NWT Wills had any separate existence – and, unless it was a corporate body, it did not have any separate existence - the Employment Tribunal added Mr Nuttall as a second Respondent. The Claimant gave evidence, which was accepted, that NWT Wills was a business owned by Mr Nuttall. The Employment Judge awarded to Mr Szewczuk £1,733 as wages due, £198.80 as holiday money or compensation for untaken leave and £1,000 representing four weeks' money in lieu of notice at £250 per week. He did that having heard the evidence of Mr Szewczuk alone because Mr Nuttall did not attend the hearing. He had asked for an adjournment on the previous day, but did not get an adjournment; his reasons for an adjournment were manifestly insufficient. The Employment Judge rejected the application, and proceeded to hear the case and make the awards that I have set out. Background[2]The employment was a short one. It began, at the earliest, on 6 September and at the latest, on 1 October 2010; which was the start date depends on factual matters which are of no importance today; it is not in dispute that the employment came to an end on 25 October. The Employment Judge found as fact that, on that day, Mr Nuttall told Mr Szewczuk that his sales figures were not as good as those of another employee, called Denise, and that his job was over. It is also not in dispute that Mr Szewczuk left on that day and did not work again for Mr Nuttall or NWT Wills, or in that business.[3]In his Notice of Appeal Mr Nuttall took four points. The first point went to the refusal of an adjournment. In the fourth point Mr Nuttall contended, as he had in his original Response, that Mr Szewczuk had not been dismissed but had walked out. In his third point he asserted that he was not the owner of the business but was a self-employed consultant to the business; and he has produced a document showing that there was a company called NWT Wills Ltd, which was never made a party to the hearing before the Employment Judge and is not a party to this appeal, which had been incorporated in June 2010.[4]Unfortunately for Mr Nuttall, on 1 July 2011 HHJ David Richardson, at the sift stage of the Employment Appeal Tribunal's procedures, decided that those three grounds of appeal had no reasonable prospect of success, and that no further action could be taken upon them, pursuant to rule 3(7) of the Employment Appeal Tribunal rules. The Employment Appeal Tribunal wrote to Mr Nuttall, informing him of this decision, referring to rule 3(8) and rule 3(10) of those rules and sending him a copy of them. No fresh Notice of Appeal or application for an oral hearing was received; and thus those three grounds of appeal were finally disposed of. Only the second ground of appeal remains.[5]The Employment Judge said in his reasons at paragraph 23: "Under his contract of employment the Claimant was entitled to receive four weeks' notice: see clause 10. In light of the low earnings of the Claimant I accept that no or minimal tax would be payable. I therefore awarded the sum without any deduction for tax, amounting to £1,0000." [sic] The sum to which he was referring, which as the Judgment makes clear £1,000 and not £1,0000 was made up, as is clear, of four weeks at £250 net per week.[6]The Employment Judge was correct that clause 10 of Mr Szewczuk's statement of terms and conditions said the amount of notice given by the company to employees would be four weeks up to the completion of four years of service. However, this statement, signed both on behalf of the employer and by Mr Szewczuk, has another paragraph, paragraph 4, to which the Employment Judge did not refer. Paragraph 4, headed "Probationary Service", reads as follows:
"Confirmation of your appointment will be subject to satisfactory completion of a period of probationary service of three months. During this time your performance and conduct will be carefully monitored and reviewed. The company reserves the right to extend the probationary period. During the first three months of the probationary period, your employment may be terminated by one week's notice on either side. From the fourth month to the end of the probationary period the contract may be terminated by four weeks' notice on either side. There will be no paid holidays in the probationary period."
The appeal[7]Mr Szewczuk, with honesty, has told me that he did not ask the Employment Judge to give him four weeks of notice money. He accepts that paragraph 4 of the statement of terms and conditions of employment applied. Plainly he had not worked, however one calculates the length of his employment, starting as early as one could on 6 September, for three months, and therefore the contractual notice period as at 25 October was one week, not four. It seems to me clear that the Employment Judge, no doubt looking at other matters, omitted reference to paragraph 4 of the contract when he was determining how much should be paid by way of money in lieu of notice. The notice period was only one week, not four; and he should have awarded in respect of that part of Mr Szewczuk's claim not £1,000, being £250 per week times four, but £250, representing one week's money in net terms. In making the award of £1,000, he made an error of law.[8]I have put to both Mr Nuttall and Mr Szewczuk the possibility that, if there is disagreement on the facts surrounding the probationary period, I would have to allow this appeal but remit the question of how long the notice period was and how much should be paid in respect of it to the Employment Tribunal. Both Mr Nuttall and Mr Szewczuk have said they do not want that to happen; nor do I, for it is an expensive process, takes up time; there is very little money in real terms at stake. Happily there does not seem, as a result of my questions to the parties and their answers, to be any dispute of fact which makes it necessary for me to remit this case to the Tribunal. Conclusion[9]I decide this appeal on the basis that the Employment Judge inadvertently made an error of law; I will allow the appeal to the extent of substituting for the award of £1,000, as compensation for wrongful dismissal, the sum of £250. The appeal is allowed, therefore, to that extent.