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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hutton v. Thompson [2004] UKEAT 0688_03_0502 (5 February 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0688_03_0502.html Cite as: [2004] UKEAT 0688_03_0502, [2004] UKEAT 688_3_502

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APPEARANCES

 

For the Appellant	MR F J HUTTON (the Appellant in Person)
For the Respondent	MR J W THOMPSON (the Respondent in Person)

SUMMARY

Contract of Employment

ET overlooked the fact that there was a claim for damages for breach of contract. Remitted to consider whether there was any amount for contracted sick pay unpaid.


 


HIS HONOUR JUDGE J R REID QC

1. This is another unfortunate instalment in litigation between Mr Hutton and Mr Thompson arising out of Mr Thompson's employment of Mr Hutton as a teacher at Parkside House in Backworth. That employment was terminated by notice given by Mr Hutton on 7 January 2001. Immediately following that, he submitted an originating application dated 8 January 2001 and received by the Tribunal on 9 January 2001, claiming unfair dismissal. There had been previous proceedings which had gone to the Employment Appeal Tribunal then back again to the Employment Tribunal relating to a failure alleged to pay sick pay appropriately.
2. The application with which we are concerned described the type of complaint as unfair dismissal, breach of contract and then, in giving details to the complaint, it set out a variety of matters in which it was alleged there was breach of contract and Mr Hutton said that he was seeking compensation for unfair constructive dismissal.
3. The Tribunal charged with dealing with the sick pay dispute held a further meeting on remission from the EAT on 1 October 2002, and having determined that Mr Hutton was entitled to some sick pay said this:

"Accordingly we find for the applicant in this matter. There is some measure of agreement between the parties after discussion that the gross figure so deducted would be £3,302.77 and the net figure £2,982. There is a difference between the parties as to whether we should award net or gross and accordingly we have given the directions above to which the parties have consented in effect saying they hope the parties will be able to determine issue as to whether it was gross or net failing that there would have to be further paper argument rather further oral argument."

4. It was in fact agreed that the payment should be gross and the sum was fixed £3,302.77. Thereafter, after various preliminary stages, the originating application with which we are concerned came before the Employment Tribunal. The Employment Tribunal's decision was in these terms: the unanimous decision of the Tribunal "is that the Applicant was not constructively dismissed and his complaint of unfair dismissal is not well founded".
5. It will be noted that the decision does not in terms deal with the question of whether or not there was a claim in damages for breach of contract, notwithstanding the words used in the originating application. Given the way in which the matter proceeded it is very easy to see how the Tribunal came to feel that it was not obliged to make any express findings in relation to the breach of contract claim.
6. There is, however, in the body of the decision a recognition that there had been a breach of contract in failure to pay the statutory sick pay and there is reference to the fact that Mr Hutton was asserting that he was entitled to a further sum by way of sick pay at the end of paragraph 6 (i) on page 8 of the decision "in the final paragraph Mr Hutton set out his claimed entitlement to a further £16,753 of sick pay and notice money".
7. There is no conclusion as to that £16,000 odd beyond this: that at paragraph 7 (j) when dealing with the sick pay issue the Tribunal said:

"As stated above, the Applicant appealed on 8 January 2001 to the EAT, which allowed his appeal on 11 April 2002. It is to be noted that the Burgundy Book rules were produced for the first time before EAT. Inter alia the EAT found that the Tribunal should not have rejected the Applicant's oral evidence as to what the Burgundy Book terms were in the absence of any contradictory evidence. Alternatively, the Tribunal should have adjourned to obtain a copy of the rules so as to assess whether they should apply in preference to the express term in clause 4 on page 2 and if so how much was due under them. The case was then remitted to the same Tribunal. On remission the Tribunal found on 1 October 2002 that the Burgundy Book rules did apply and by agreement found that sick pay amounting to some £3,300 gross or £2,982 net had been unlawfully withheld from the Applicant."

They then go on to put that in the context of the claim for constructive dismissal.

8. So far as notice is concerned, there does not in fact appear to be any express determination of the claim for pay in lieu of notice. Before us Mr Hutton has said that the agreement in relation to sick pay related only to the period up to the date on which he issued his first originating application and what remains unresolved, but for which he was claiming in the second tribunal hearing was his entitlement to sick pay for a period after the date of the first originating application.
9. That has led to a unresolved tension between the parties as to whether the earlier decision of the Employment Tribunal as to the amount of sick pay was a decision only up to the date of the first originating application or was a decision relating to the total entitlement of Mr Hutton to sick pay, it being common ground that by the time of the decision as to the amount of sick pay, any sick pay due would have accrued due although (according to Mr Hutton) some, part of it fell due after the issue of the first originating application.
10. There is no agreement between the parties because the point appears to have arisen rather late. There is no means for us of determining firstly, to what the period of the first award of sick pay related, or secondly, to what period after the date of issue of the first originating application sick pay might have related, and whether indeed there was any further sick pay due after the date of the first originating application due to Mr Hutton.
11. The position before us is therefore that there was (unappreciated by the Employment Tribunal) an issue as to whether Mr Hutton was entitled to some further sick pay in respect of a period after the issue of the first originating application. Regrettably (because the amount involved is on Mr Hutton's figures at most only £2,759.00) that dispute has to go back to the Employment Tribunal.
12. Mr Hutton raised two other issues which he said were claims for damages for breach of contract which he said were not adjudicated upon. So far as those are concerned, we need not remit either of those to the Employment Tribunal because it is clear to us that neither of those claims could be sustained. But the first of those was a claim for payment during the period of notice. He gave his notice, as I have said, on 7 January, but was required by the terms of his contract to give in effect three months notice, about a term's notice. He suggested that by the terms of his contract he was then entitled to be paid during that notice period.
13. That suggestion appears to us to be unfounded. The provision upon which he relied as founding that claim was a provision which applies where notice is given to the teacher not where notice is given by the teacher. The provisions do not it seems to us entitle a teacher who gives notice to receive payment he would not otherwise have received, whereas a teacher who is given notice by the school may in certain circumstances be entitled to receive payment during the period of notice even though he would not in the absence of having been given that notice have been entitled to any payment by way of sick pay or otherwise.
14. It seems to us, therefore, that so far as the claim for notice pay is concerned that is doomed to failure and there is no basis on which it could be a proper use of the tribunal's resources to remit that matter simply to be formally dismissed by the tribunal. So far as his third point was concerned, he claimed something in the region of £21,000.00 by way of compensation for all the time and effort that he had put into his two claims against Mr Thompson. He suggested that that was the appropriate sort of figure on the basis that he had effectively worked full-time for a year on preparing such claims.
15. In essence this is no more than a claim for costs. If it is a claim for anything beyond that, it is not sustainable at law. As a claim for costs it is bound to fail for three reasons. First, that if he had wished to obtain costs he should have sought to obtain costs from the two tribunals at the conclusion of the hearings before them and second that, given the terms of the Employment Tribunal's power to award costs, it would not have been open to either Tribunal in the circumstances of the case to make any award of costs. Thirdly, we should say that so far as the latter Tribunal is concerned the one against whose decision the appeal is before us today, Mr Hutton very substantially lost and were any award of the costs to have been possible or to have been made it would not have been made in favour of Mr Hutton but would have been made against him.
16. In conclusion therefore the regrettable fact is that for very understandable reasons the Tribunal failed to deal with the one outstanding breach of contract issue which had theoretical possibility of success, namely the sick pay issue and regrettably this matter will have to be returned for further consideration by the same Tribunal (the two member Tribunal as it happens) for them to consider whether there is any outstanding claim for sick pay i.e. a breach of contract claim for sick pay having not been paid and if so, for what period and in what amount. It seems to us that it would be of assistance to the Tribunal on their reconsideration if the parties are unable to agree what the outcome should be if each of the parties were to prepare for the benefit of the Tribunal and exchange: first of all a schedule of the days of sickness in the appropriate teaching years which Mr Hutton suffered: secondly, a schedule of the period in respect of which the amounts of sick pay already paid related: and thirdly a schedule of the dates and the months in respect of which it is said sick pay still remain to be paid.
17. Without any great optimism in view of the prolonged history of this matter, we would hope that given the comparatively small amount of stake the parties would be able to reach agreement as to whether anything is still due, and if so, what, but failing I fear they will have to go back to the Employment Tribunal who can then finally resolve differences between these parties. For those reasons and that very limited extent this matter will be remitted.