Appeal No. UKEAT/0045/04/CK

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 June 2004

Before
THE HONOURABLE MR JUSTICE NELSON
DR K MOHANTY JP
MR D SMITH

MR B TODD t/a WENSUM VALLEY HOTEL	APPELLANT

MRS L A STORER	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Written Submissions by:
Messrs Hatch Brenner Solicitors
4 Theatre Street
Norwich NR2 1QY	
For the Respondent	Written Submissions by:
Messrs T J Shepperson Solicitors
148 Unthank Road
Norwich NR2 2RS	

SUMMARY

Unlawful Deduction from Wages

Appeal against decision by Employment Tribunal that claims for unlawful deductions of salary were in time by reference to a series of claims.  No claim was in fact made within the 3 month time limit.  No extension of time sought.  Appeal allowed.

THE HONOURABLE MR JUSTICE NELSON

1.	This is the full hearing of the appeal by Mr Basil Todd trading as Wensum Valley Hotel, against the decision of the Employment Tribunal at Norwich on 5 September 2003, that the Applicant was entitled to a sum of £2,157.64 by way of unlawful deduction of wages under section 23 and 24 of the Employment Rights Act 1996.  The Tribunal dismissed the claim for unfair dismissal which had been brought by the Applicant.

2.	The appeal has been dealt with on paper with the agreement of the parties and no application has been made by either party today or earlier for oral submissions to be heard.  No-one has attended the hearing today.

3.	There had been no further written submissions since the EAT ordered that the appeal should go to a full hearing on paper on 16 March 2004.  We agree with the conclusions that Burton J in his decision on behalf of the EAT concluded, which he then expressed, and we also agree with the reasons that he then gave.

4.	Whilst holding that the Appellant’s first two grounds were unarguable, the Employment Appeal Tribunal found that the third ground, namely the time point, was a compelling ground of appeal.  In his judgment Burton J said, in paragraphs 11, 12 and 13 as follows:

“11	What we find totally compelling, however, is the time point, which is put forward by Mr Vachaviolos, the solicitor who has appeared here and below on behalf of the Appellant.  Given that she, in those circumstances, did have an entitlement, or has certainly not been found not to have an entitlement, in respect to the period prior to 27 December, insofar as that claim is put under the Employment Rights Act, such claim appears to be statute barred.  Of course she might have had a claim, and might still have a claim in some other court, in respect of a breach of contract by virtue of non-payment, but that is not a matter for us in this Tribunal, where the only claim that was run before, and decided on by, this Tribunal, was under section 23 of the Employment Rights Act.

12	The way in which the Tribunal sought to help the Applicant over the problem was by reading back in a claim for the period from 27 December onwards - in respect of which not only might she have had difficulty claiming, on the Miles -v- Wakefield basis, but which she had never claimed in her Originating Application - and then building on that to say that there was a series of claims, such as to bring the claim in respect of the period prior to 27 December back into play.  That plainly is not, in our view, subject to any argument that may be hereafter produced, arguable.
13	In those circumstances, if this were today the full hearing of the appeal, we would be allowing it, and substituting a decision that the Appellant is not entitled to make a claim in respect of the only claim for unlawful deduction that she made, namely the period prior to 27 December, because she did not make that claim within three months, and she made no application for any extension of time to the Tribunal below…”

5.	We agree entirely with those findings.  We are satisfied, each of the members of the Employment Appeal Tribunal having considered the papers, that the Applicant, Mrs Storer was not entitled to make a claim for the period prior to 27 December 2003, the only period in respect of which she did make a claim.

6.	Accordingly this appeal must be allowed.  The decision of the Employment Tribunal of 18 December 2003 is set aside and the Applicant, Mrs Storer’s claims are dismissed.