Appeal No. EAT/1409/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 October 2000

Before
HIS HONOUR JUDGE J R REID
MR B V FITZGERALD
MR G H WRIGHT MBE

MRS J K MacMULLEN	APPELLANT

DR M J COOKE t/a THE NETHERTON NURSING HOME	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P MacMULLEN
(Husband)	
For the Respondents	NO APPEARANCE OR
REPRESENTATION 
BY OR ON BEHALF OF 
THE RESPONDENT	

JUDGE REID QC

1	This is an appeal from a decision of the Employment Tribunal sitting at Southampton.  The decision was a decision of a Chairman sitting alone; the hearing took place on 22 September 1998, and the extended reasons were promulgated on 25 September.  

2	By those proceedings on 22 September, the claim which was being made by the Applicant and Appellant, Mrs MacMullen, was for a wrongful deduction of wages in the circumstances that she had originally been employed, at £7.00 per hour; but her wages had subsequently been reduced to £6.30 an hour, and she was claiming for what might be called the missing 70p per hour.  

3	The proceedings which she had originally launched, had also included a claim for racial discrimination, but that claim had been struck out, so that the only matter being litigated on 22 September and now subject to this appeal was the unauthorised deduction of wages. 

4	It is clear that Mrs MacMullen and her husband, who has represented her before us, and who has presented her case skilfully with moderation, saying all properly could be said on her behalf, feel very strongly that they would like the other matter to be dealt with, but they accept that that is not something that this Appeal Tribunal can do. 

5	They also feel very strongly that allegations were made against Mrs MacMullen in relation to the manner in which she carried out her duties as a night sister, and that those allegations were unfair and unfounded.  Let me say immediately that there is no evidence to support any allegation which may have been made against Mrs MacMullen as a nurse, and those allegations are entirely irrelevant to the matters that we have to decide.  
6	On this appeal, there are three matters which have been raised and to which we need to turn our attention.  The first is an application dated 29 September by which Mrs MacMullen asks that the Respondent’s Notice of Appearance be struck out on the basis that:
“the Respondents have lied and perjured in oral and written statements throughout this case, resulting in legal decisions and judgments being made of a biased nature”

The Respondent, that is to say Dr M J Cooke, trading as Netherton Nursing Home, who is we understand, now subject to a voluntary scheme of arrangement, has not appeared and as I indicated to Mr MacMullen when this appeal opened, that application really does not assist one way or the other, because the Respondents are not here to argue the case to the contrary, and even if their Notice of Appearance were struck out, that would not automatically mean that the appeal would be allowed.  We would still have to be satisfied that the decision below was wrong.  Mr MacMullen accepted that in those circumstances, no more be said about the first point.  

7	The second point that was raised was bias on behalf of the Chairman: putting it in short form it suggested that, to use a colloquialism: “the Chairman lost his cool” with Mr MacMullen in the hearing before him, that as a result he was unable to conduct the hearing in a proper and unbiased manner.  We have received evidence both in the form of an Affidavit from Mrs MacMullen and we have received also comments from the Chairman and from Counsel, who below, appeared on behalf of Dr Cooke. 

8	The upshot of it all is that it does not seem to us that any more needs to be said on this point.  The reason that is suggested is that the Chairman lost his temper which arose out of a misunderstanding, and it appears to have existed as to whether or not Mr MacMullen had finished examining his wife in chief; but it is clear that the evidence that Mrs MacMullen wished to give was, eventually, all given and that the findings of fact set out in the extended reasons, are all findings of fact with which the MacMullens have no complaint.  I took the opportunity in the course of the hearing of taking Mr MacMullen through the various findings of fact, and asking whether he disagreed with any of them, and he did not  We are satisfied that the Chairman was not biased and that his decision was not tainted by bias.

9	In those circumstances, it seems to us that the proper course is for us simply to continue to deal with the question of law which has been raised, and which is set out in the Amended Notice of Appeal, which was filed with the leave of the Tribunal following the ex parte preliminary hearing.  That Amended Notice of Appeal was prepared by Mr Gary Morton of ELAAS, who on that occasion, assisted the MacMullens and, in these terms, the Appellant appeals against the decision of the Employment Tribunal on the grounds that the Employment Tribunal: a) erred in law, or b) alternatively reached a decision which no reasonable Employment Tribunal properly directing itself on the facts of the law, could have come to and/or was obviously wrong.  

10	The single ground of appeal is that there was no evidence to support the decision of the Employment Tribunal in paragraph 7 of its extended reasons, that the Appellant had at some time between January 1997 and 22 August 1997 affirmed the unilateral variation of her contractual hourly rate of pay from £7.00 to £6.30 an hour.  

11	It is to that issue that I now turn.  The chronology of events in this case is this:  that Mrs MacMullen was employed in November 1994 as a night sister at the Netherton Nursing Home.  By the beginning of January 1997, and indeed perhaps from the beginning of her employment, her wages were £7.00 an hour.  At the end of January of that year, by which time Dr Cooke had taken over the nursing home, she was told that her wages were to be reduced to £6.30 per hour.  She did not like that.  On 20 February 1997, solicitors on her behalf wrote a letter of complaint.  There was no reply to that letter.  On 30 May, a new document purporting to set out her terms of employment was given to her recording her wages as £6.30 per hour.  We were told that she protested orally at that, but there is no evidence of any further correspondence indicating protest.  

12	Throughout the period from the end of January until the 31 August, Mrs MacMullen continued to attend for work and continued to be paid at the rate of £6.30 per hour.  On 31 August, she was made redundant on the closure of the home.  On 26 September, the claim was made on her behalf by her union for redundancy pay, holiday pay and pay in lieu of notice.  The claim identified the rate of pay as being £6.30 per hour.  

13	On 21 November, she issued proceedings in the Employment Tribunal alleging an unauthorised deduction of wages and also alleging racial discrimination.  The claim for redundancy, holiday pay and payment in lieu of notice was settled.  It appears from the finding of the Chairman, the claim was settled on the basis of the claim made by Mrs MacMullen’s union on 26 September.  

14	At the hearing, the Chairman took the view that he was satisfied that before 22 August, the Applicant, Mrs MacMullen, had affirmed the contract bringing about a variation in her terms, and that by 22 August, the amount properly payable under her contract was £6.30 per hour.  The significance of the date of 22 August was that the proceedings before the Tribunal were commenced on 21 November 1997 and that since she was in receipt of legal advice until, according to her, the 22 September 1997, there was no reason why she could not have presented a complaint relating to the deduction of pay at any time during that period. 

15	It followed that there was a three month time limit, running back from 21 November to 22 August, and that if she were to succeed in the claim she made, she would have to show that an instalment of her wages had been paid at a wrongly reduced rate at some time within that three month period. Effectively, given the redundancy, that meant in the period 22 August to 31  August.  

16	The Chairman’s decision was that the lengthy period during which she had continued to work, without any action being taken beyond the solicitor’s letter, and some oral protest, coupled with the evidence of acceptance from the form in which the Respondent’s union claimed redundancy payment at £6.30 per hour, indicated that she had accepted, no doubt albeit with reluctance, because she needed the job and she needed the money, a reduction in the rate of pay applicable to her job.  

17	We entirely accept that she had not signed the purported new contract given to her on 30 May and we entirely accept that she was not happy about the matter.  The problem that we have is that we are not the Tribunal which tried the case, we are a Tribunal which has to determine whether the Tribunal below got the law wrong and whether there was any evidence to support the decision to which the Employment Tribunal came in its decision.  

18	It is not for us to substitute a finding of fact as we might have found it had we been the trial Tribunal.  In our judgment, there is evidence on which the Tribunal could reach the decision which it did reach, there is first of all the lengthy period of time during which the Appellant continued to work and to be paid at the rate of £6.30  Second, there is the absence of any written or active follow up to the solicitor’s letter on 20 February.  Third, there is the absence of any written or active response to the handing over of the new particulars of employment.  
19	All of those together are, in our judgment, indications from which the Tribunal Chairman could properly arrive at the conclusion which he did.  It would have been open to Mrs MacMullen at any time during that period, whilst she was legally advised, to have brought proceedings.  The Chairman further, in our view, was entitled to take the view that the claim, made almost a month after redundancy, on 26 September, asserting that the rate of pay at £6.30 an hour was further indication that before 22 August, Mrs MacMullen had affirmed the contract, bringing about a variation in the terms. 

20	In saying this, we take account of the fact that on the front of the form IT3 filled in on behalf of Dr Cooke, the question:  “Are the details given by the applicant about wages/salary, take home or other bonuses correct?” had the “Yes” box ticked when paragraph 8 of the form filled in by the claimant indicates the basic wage was £7.00 an hour.  We think that that response has to be read in the light of the particulars overleaf which specifically state:
“2……The Respondent brought the Applicant’s pay into line with the other employees and she was therefore paid at the rate of £6.30 per hour.  The Applicant agreed to the new rate of pay”
It therefore seems to us that it is clear that there was no acceptance by the Respondents that £7.00 an hour was the appropriate rate of pay.  

21	The result is that, in our view, this appeal must fail.  We entirely appreciate that Mrs MacMullen feels deeply unhappy about the course that events have taken.  We also appreciate that, as Mr MacMullen said on her behalf, the object of these proceedings has not primarily been to obtain the comparatively small amount of money which was in issue in the proceedings, as they had come before us, but to vindicate his wife’s reputation as a nurse, something which in the events that have happened, he and she have been unable to have litigated out in open court.  But this Tribunal would like to make it entirely clear that the fact that this appeal fails is not in any sense an indication that Mrs MacMullen has in any way, at any time, failed in her duties as a Night Sister.  The allegations, which were originally made against her have not been supported by one shred of evidence and so far as the Employment Tribunal and this Tribunal are concerned, there is no justification for any such allegations having been made.  

22	With that scant comfort, I am afraid Mrs MacMullen is going to have to be satisfied, but as a matter of law, and the appeal has to be on a point of law, we are unable to find that the Chairman below erred.  The appeal must therefore be dismissed.