Appeal No.	 EAT/850/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 November 1999

Before
HIS HONOUR JUDGE D PUGSLEY
MRS D M PALMER
MR P M SMITH

MR S BRADSHAW	APPELLANT

JEFFERIES & PENNICOTT	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	

HIS HONOUR JUDGE D PUGSLEY:		The Appellant has indicated he does not intend attending the hearing. 

1.	In this case the Employment Tribunal by a decision of the 9th April, promulgated on the 1st July, with extended reasons dismissed the application of unfair dismissal made by the Applicant.  It is right to say that at an earlier hearing on the 15th December, the Tribunal have upheld his complaint under the Wages Act.   It was a differently constituted Tribunal and the amount of money that had then been ordered pay was the sum of £424.78 and £67.76 making a total of £492.24.  

2.	The decision which the Appellant wishes to appeal is a matter that is of a slightly different nature.  In his Originating Application, the Applicant claimed not only had there been an unlawful deduction of his wages, but also he  had been constructively dismissed by his employer, that it he had resigned his employment in response to a fundamental breach of contract and employment by the employer.  

3.	The Applicant had less than 2 years continuous employment as was at that time required by section 108 of the Employment Rights Act 1996 and he could not bring a claim for unfair dismissal, unless he was able to bring himself to one of the exceptions to that section.  One of those exceptions is section 104, which provides an employee who is dismissed to be regarded for the purpose of the Act as unfairly dismissed:   if  the reason for dismissal is the employee: 

(a)	brought proceedings against his employer to enforce a right of his, which is a relevant statutory right
(b)	alleged that the employer infringed the right of his which is a relevant statutory right.  

4.	In accordance with subsection 2 of section 104, it is immaterial for the purposes of subsection 1, whether or not the employee has a right or whether the right has been infringed.  But for subsection 2 to apply, the claim to the right and that it has been infringed must be made in good faith.   Subsection 3 of section 104 provides that it is sufficient for subsection 1 to apply if the employee, without specifying the right, makes it reasonably clear to the employer what the right claim to has been infringed was. 

5.	The Tribunal found, in this case, that their had been a breach of a relevant statutory right in the Respondent had as previously been found made an unlawful deduction of the Applicant’s wages.  However it held that to be able to bring himself within section 104, it is for the Applicant to show that he had, in terms of the Act, asserted a statutory right which he alleged to be infringed, namely in this context, the right not to have an unlawful deduction made from his wages.  

6.	The Tribunal concluded in paragraph 7 that from the evidence they had heard, there were one or two meetings between the Applicant and Mr Pennicott when the question of deduction made from the Applicant’s wages was discussed.  In those discussions, the Tribunal found on the balance of probability that the Applicant did not at any time assert or claim his employers should not be making a deduction from his wages.  Indeed, in relation to a previous incident the Applicant had accepted his employer had the right to make a deduction from one month wages.   What the Applicant was asking in these discussions was instead of making the whole of the deduction from one month, which left the Applicant with no pay for that month,  the deduction should have been made by way of a series of instalments.  

7.	Paragraph 7 of the original decision continues:-

Further, we find on the evidence of prior to his handing in his letter of resignation to Mr Osbourne, the Applicant had not made any assertion or statement to that effect that the deduction from his wages was unlawful or as he said in his letter of resignation, illegal.  Section 104 requires that the dismissal must be as a result of the assertion of a relevant to statutory right, not the infringement of statutory right as such.  It must be because the Applicant has asserted his statutory rights, not simply because those rights have been infringed by his employer.  

7.	The Tribunal made the finding that the Applicant had not said sufficient to his employer to make it clear that he believed that his statutory rights have been infringed. Paragraph 7 continues:-  

“Taking into account the words of subsection 3 of section 104, the Applicant has not made it sufficiently clear to his employee what the right claim to have been infringed was.   In this respect, we note that in Mennell v Nowell & Wright (Transport Contractors) Limited (1997) IRLR 519, the Court of Appeal while agreeing the Employment Appeal Tribunal that section 104 is not confined to cases where statutory rights has actually been infringed, nonetheless, dismissed the Applicant’s claim because he was not able to say when, where, with whom, or in what terms he had made this allegation.  The most the Applicant was able to say in this case would be when his told manager he wanted to pay the deduction by instalments.   That does, on the facts, amount to assertion of statutory right for those reasons the claim is dismissed”.

8.	We cannot see an error of law or any misdirection which would make this claim have an arguable case.   The grounds of appeal perhaps have an interesting flavour to them in that various allegations are made bias but as no affidavit has been filed they have been deleted from the grounds of appeal by order of this Tribunal.

10.	We have decided there is no arguable ground and the appeal is dismissed.