Appeal No. EAT/0808/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 01 March 2001

Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY CBE
MRS R A VICKERS

BCP FIELD MARKETING	APPELLANT

GILLIAN M MATLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION 
BY OR ON BEHALF OF
THE APPELLANT	

HIS HONOUR JUDGE PETER CLARK:

1.	This is an appeal by the Respondent before the Birmingham Employment Tribunal, BCP Field Marketing, against that Tribunal’s decision promulgated with Extended Reasons on 24 May 2000, upholding the Applicant, Miss Matley’s claim for damages for breach of contract and awarding damages of £1,200 less tax at the appropriate rate.  The Tribunal found that the Applicant commenced employment with the Respondent as an Account Executive in October 1997.  She was paid a weekly flat rate of £400 plus expenses.  On 9 August 1999 the Respondent wrote to the Applicant stating that she was no longer required to arrange appointments or visit clients.  She was asked to return all of the Respondent’s paper work.  In that letter the Respondent offered the Applicant an alternative position which she rejected because the remuneration in that post would have been on £300 per week and £20, we think 20p, per mile travelling expenses.

2.	The Tribunal held on those facts that the Applicant was an employee for the purpose of the Employment Rights Act and entitled to one week’s notice of termination of employment or pay in lieu but no such payment had been made.  Further they found, by reference to the Working Time Regulations, which apply to workers including those who are self employed in addition to employees that is, persons employed under a contract of service, that she was entitled to two weeks holiday pay, which again had not been paid by the Respondent.  In these circumstances they awarded the equivalent of three weeks gross pay, that is £1,200 less tax if appropriate.

3.	Against that decision, the Respondent not having appeared before the Employment Tribunal, the Respondent appealed by a notice date 27 March 2000.  The appeal was first listed for preliminary hearing before a division presided over by Judge Pugsley sitting on 11 January 2001.  On that occasion, the Respondent did not appear and the Tribunal adjourned the appeal directing that within 14 days of the date of the order made, the Respondent BCP should show cause for non attendance at that hearing, failing which the appeal will be dismissed for want of prosecution.  On 23 January 2001, BCP wrote to the EAT indicating that they did not realise that attendance was necessary at the preliminary hearing.  In these circumstances the case was re-listed for hearing before us today and by a notice dated 26 February, BCP then indicated that they did not intend to be present at this hearing.  In these circumstances, we have considered the case on the papers, paying particular attention to the grounds of appeal set out in BCP’s notice.

4.	The principal points taken appear to be first, that the Applicant was not employed under a contract of employment.  That argument is relevant to the Tribunal’s finding that the Applicant was entitled to one week’s pay in lieu of notice.  The difficulty that BCP face is that they did not attend the original Tribunal hearing and therefore did not put forward any evidence in support of the case set out in their notice of appearance that the Applicant was not a member of staff i.e. not employed under a contract of service.  Based on the evidence which they did hear from the Applicant, the Tribunal concluded that she was employed under a contract of service rather than a contract for services and we can see no grounds for interfering with that finding.  The second point made in the notice of appeal is that she was not entitled to holiday pay.  That overlooks the provisions of the working time regulations, to which the Employment Tribunal referred, under which she was entitled to holiday pay.  The Tribunal found as a fact that she was not paid for the two weeks holiday entitlement then accrued at the time of termination of her employment and accordingly, we reject this further ground of appeal.  In these circumstances, we have concluded that this appeal raises no arguable point of law to go forward to a full appeal hearing and consequently, we shall dismiss the appeal at this stage.