Appeal No.	 EAT/1446/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 February 2002

Before
HIS HONOUR JUDGE WILKIE QC
MR D J HODGKINS CB
MS B SWITZER

ACTIONFORT LTD t/a BROOKNIGHT SECURITY	APPELLANT

MS T BENTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	
For the Respondent	MR T NEWTON
(Legal Advisor)
North East Employment
Law Consultants
Ward Jackson chambers
1st Floor 73a Church Street
Hartlepool
Cleveland
TS24 7DN	

HIS HONOUR JUDGE WILKIE QC

1	This is an appeal by Actionfort Ltd trading as Brooknight Security against certain aspects of a decision of the Employment Tribunal held at Newcastle–upon-Tyne on 4 and 18 September 2000 in which they upheld Ms Benton’s complaints that she had been dismissed by reason of pregnancy, had been discriminated against on grounds of sex, had suffered unlawful deduction from wages and ordered the Respondent to pay £10,908.50 in compensation and interest together with a separate order of £500 contribution to costs.  

2	The Respondent had launched an appeal on substance as well as on all the heads of the financial award in a Notice of Appeal.  There was a Preliminary Hearing of that appeal on 
30 July 2001 before a differently constituted panel at which Mr Ellis, the consultant representing the Respondent, had attended.  On that occasion the grounds of appeal relating to substance were dismissed as evidencing no reasonably arguable case, as indeed was the appeal against the award for injury to feelings.  However, the appeal on the essentially compensatory elements of the award together with the appeal against the award of costs were permitted to proceed to an Inter Parties Hearing.

3	The Appellant, through Mr Ellis, has furnished a recast set of submissions on the appeal for today’s hearing which reiterate effectively the same arguments as before, but has not attended today’s hearing in person.  The Respondent to the appeal has also furnished a skeleton argument, through Mr Newton, her representative, and he has attended today and has greatly assisted us in our deliberations by his helpful and, if we may say so, highly responsible attitude towards the various issues with which we are concerned.  

4	The decision of the Tribunal contained, in paragraph 9, a series of sub-paragraphs which set out the Tribunal’s findings of fact.  They made further findings of fact in paragraphs 13, 14 and 15.  The crucial document in the case was a document containing the terms and conditions of service upon which Ms Benton was engaged by the Appellant.  This is a document which was signed by both Ms Benton and the Appellant.  The Tribunal found that that was the document which contained the contract between them.  The rate of pay was described in the document as constituting a basic hourly rate together with an attendance bonus, payable pursuant to guidelines referred to as being contained in another document.  That other document was not, apparently, placed before the Tribunal.  In the original typed contract the hourly basic rate was said to be £4.00 per hour but there is a hand written manuscript alteration, which plainly was intended to be binding, in the Applicant’s copy, which Mr Newton has kindly shown us this morning, indicating that the basic hourly rate was £3.75 per hour.  

5	The terms of the contract provided that Ms Benton was guaranteed pay for 40 hours per week regardless of whether the Appellant required her to work that number of hours in a week, provided she reported herself by telephone as being available for work at a certain time each day by contacting the Appellant.  The contract itself does not specify whether the guaranteed payment per hour was simply to be the basic rate of £3.75 per hour, or was to include the attendance bonus, that is to say, whether she qualified for the attendance bonus by making herself available, or only if she actually was required to attend work as required by the Appellant.  However that may be, the Appellant has furnished and presented to the Tribunal, documentation and in particular a payslip which shows that the attendance allowance was payable at the rate of £1.50 per hour, so that taking that with the basic hourly rate of £3.75 per hour gives a rate of £5.25 per hour.  

6	The Tribunal sets out its reasoning supporting the calculation of compensation in an extremely truncated form in paragraph 16 of the decision.  In effect, it is a list of headings and sums of money against respective headings.  Some of them need little further explanation and it is perfectly obvious what they refer to.  The first is ‘Injury to feelings’ - £2,500.00, which is not of course the subject of this appeal.  Another is ’14 weeks maternity pay at £55’ making £770 and it is perfectly plain what that refers to.  The Appellant’s appeal in respect of that is that because they will be entitled to reclaim that sum from the Secretary of State, they say that the money goes round in a circle and so it was wrong in principle for the Employment Tribunal to have made this award.  We agree with Mr Newton’s contention that that is simply an incorrect submission.  She is entitled to receive the maternity pay.  It is up to the Appellant to decide whether to seek recoupment from the Secretary of State, and if so, to deal with that matter themselves.

7	The other 3 headings state respectively: -

Immediate loss 10 weeks pay at £170 		£1,700.00
52 weeks future loss at £170 reduced by 50%	£4,420.00
Unlawful deduction of wages 5 x £170		   £850.00

Although that is extremely brief in stating what it refers to, we are perfectly satisfied that the previous paragraphs in the decision make it clear to what periods of time the calculation refers and we agree with Mr Newton in what he has drawn from the full terms of the decision in this respect.  The immediate loss of 10 weeks is plainly referable to the period immediately following her dismissal on 4 April.  That, coupled with the 14 weeks maternity pay, takes us from the date of her dismissal to the date on which the Tribunal hearing finally concluded.  The 52 weeks future loss, at £170 reduced by 50%, is plainly a reference to the finding by the Tribunal that there was a 50% prospect that within a year from the date of the Tribunal hearing she would have obtained full time work and therefore the basis of that reasoning is clear.  So to is the basis of the reasoning of the unlawful deduction of wages, 5 x £170, because the evidence given by Ms Benton, and accepted by the Tribunal, was that she had in fact worked the equivalent of 5 weeks out of the 10 weeks during which she had been employed prior to her dismissal on 4 April.  She had only been paid for the hours that she actually worked.  She expected to be paid the guaranteed 40 hours per week.  She thought that that matter would be sorted out in due course along with her expenses.  Therefore it is clear that that calculation is based on those findings of fact and represents the sums unpaid by the Appellant to the Respondent for the 10 week period during which they employed her in respect of the guaranteed 40 hour week when she had only worked approximately half that number of hours.

8	There is one highly technical pleading point.  That is that the Applicant in her application, whilst claiming in general terms wages owing, did not, in setting out her claim in some detail, identify that particular heading as we have described it and as the Tribunal found it to be.  Mr Newton has informed us that it became apparent during the course of the hearing that she was entitled to be paid the guaranteed 40 hours per week and that it was on that basis that this aspect of the claim was advanced.  We have to say that it is apparent from the terms of the Notice of Appeal that the Appellant appears to be confused as to what this particular heading refers to, as they seem to think it somehow represents a double claim in respect of the 10 weeks immediate loss.  It does seem to us that in this particular respect the reasoning of the Tribunal is opaque.  As we are in any event going to remit it to the Tribunal for them to clarify their reasoning in other respects, we are minded to do so under this heading so that they can make it clear whether our surmise is correct.

9	Where, in our judgment, and Mr Newton has not sought to dissuade us from this view, the reasoning of the Tribunal is deficient, in the sense that it does not reveal to the parties respectively why the award is as it is, is in respect of their assertion that her loss is at the rate of £170 per week.  Where the £170 per week is a measure of 40 hours payment that has not been made, it might be thought, which is the Appellant’s argument, that it represents a gross sum of £4.25 per hour.  We think that is unlikely to be the case because nowhere in the contract of employment is there any reference to a figure of £4.25 per hour.  Therefore it may be, as Mr Newton has surmised, that it represents a netted down version of £5.25 per hour namely, £3.75 basic plus £1.50 attendance allowance.  That would of necessity require the Tribunal having found that the attendance allowance was payable regardless of whether she attended the site and was due simply on the basis that she had made herself available to attend the site by reporting her availability each morning.  Unfortunately the Tribunal decision does not give us any clue as to whether £170 per week does represent some netted down figure, and if so, how the £5.25 per week (if that indeed is the gross figure) has been arrived at.  

10	Therefore, regretfully, we are obliged to find that the reasoning of the Tribunal is inadequate in the Meek v City of Birmingham sense and therefore it is appropriate for us to uphold the appeal in respect of the £1,700, the £4.420 and the £850, at least to the extent of remitting it to the Tribunal for them, without hearing further argument or evidence, to clarify their reasoning process.  Once that has been done, and they have either confirmed the award or changed the award or given adequate reasons, then the Appellant will no doubt want to consider whether to launch a fresh appeal in respect of those reasons.  It also necessarily follows that the interest award has to be subject to the same direction remitting it to the Tribunal, because plainly it flows from the figures which the Tribunal has found, on which we have concluded there is an inadequate statement of reasons.  

11	The final ground of appeal is on costs.  The Tribunal’s decision is truncated and does not refer in terms to its powers to make an award for costs where the conduct of the party against whom the award is made has conducted themselves unreasonably.  Nonetheless it does seem to us that the findings of fact in the decision are sufficiently clear so that it is manifest that this is the finding that the Tribunal has made.  The award of £500 costs was in respect of a wasted days hearing.  It is clear from the Tribunal decision that the wasted day was caused by the Appellant in the first place failing to attend the Tribunal hearing on 
4 September with a person, whom at that stage they asserted was a crucial witness, being the person whom they said had actually dismissed Ms Benton.  Having obtained an adjournment in order that they might call that witness on the next occasion, 18 September, that witness did give evidence, which did not support their assertion that he had any relevance to the case at all because he denied being the person who had dismissed her.  Furthermore they had been put on warning as to costs by a letter written by the Applicant.  In our judgment the reasoning of the Tribunal, though truncated, is perfectly clear and there is no sensible basis upon which it can be said that that was an erroneous decision on their part.  We dismiss the appeal as far as that matter is concerned.

12	Thus, we uphold the appeal in respect of the figures to which we have referred, £1,700, £4,420, £850 and interest, but only to the extent of remitting this case back to the Employment Tribunal for them to furnish adequate reasoning to support the conclusions to which they have come in respect of those headings of the award.