Appeal No.	 EAT/940/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 December 1998

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MR D A C LAMBERT
MR T C THOMAS CBE

IGW GROUP	APPELLANTS

MR D PRINCE	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR D BROWN
(Of Counsel, appearing under ELAAS)	

	MR JUSTICE LINDSAY:	We have before us, by way of a preliminary hearing, the appeal of IGW Services Ltd in the matter of Mr D Prince v IGW Services Ltd.   It was a case in which there were claims and counter-claims.   Mr Prince had claims against IGW and IGW had claims against Mr Prince.   

	There was a hearing spread over two days, on 4 February 1998 and 7 May 1998, and the decision of the Industrial Tribunal at Manchester, under the Chairmanship of Miss A F W Woolley, was promulgated on 3 June 1998.   There were four headings of the decision;  one was a victory for IGW - and there is no appeal by Mr Prince on that subject - and three were victories for Mr Prince.   The decisions were as follow:

“The unanimous decision of the Tribunal is that:-
1.	we declare that the term of the applicant’s contract was that he should give one week’s notice of termination;
2.	we dismiss the applicant’s claim for unauthorised deductions from wages within the meaning of Part II of the Employment Rights Act 1996;
3.	the respondents were in breach of the applicant’s contract of employment in failing to pay his wages due and we order them to pay to the applicant damages of £461;
4.	the respondents’ [IGW’s] counterclaims are dismissed.”

	The Notice of Appeal in this matter is terse to the point of incomprehensibility.   The ground on which the appeal is brought, it says, is as follows:

“The appellant signed to say he had accepted his contract and received a set of company conditions.   The Tribunal accepted the appellant’s claim he did not receive such conditions was in itself entitlement not to be bound by such acceptance.”

	Fortunately since then there has been a skeleton argument lodged by IGW and this morning IGW has had the assistance of Mr Brown from ELAAS.  

	Dealing with the points that are taken in the skeleton argument and as developed by Mr Brown, they are as follows.   The first one is that the Industrial Tribunal wrongly concluded that Mr Prince was paid weekly.   That, says IGW, had the wrong consequence that Mr Prince was taken to have needed to give only a week’s notice and in turn that had the further wrong consequence, so far as IGW asserts, that the claim of IGW that he should have given a month’s notice and that they suffered damage by reason of his giving only a week’s notice correspondingly failed.   

	This is a point of some importance in IGW as, we are told, the conclusion of the Industrial Tribunal has ‘leaked’, so to speak, back to the workforce and has led to a degree of confusion.   We see it as very well arguable that on this point the Industrial Tribunal did get that issue wrong.   The Industrial Tribunal accepted that Mr Prince was actually paid only each calendar month:  what they say in their para 13 is this:

“We accept he construed it that he was weekly paid because his wages were calculated in weekly periods, although the payment was made each calendar month.”

	They went on to say this in para 14:

“We find the wording used in the document R3 and the term of this contract was ambiguous.   As it was an ambiguous term we come to the conclusion that it should be construed in the way which was more favourable to the applicant.   We have come to the conclusion that the applicant was ‘weekly paid’ within the meaning of that term in any event.   We find he was treated by the respondents as hourly paid for some purposes of the terms and conditions, although that was not a wholly accurate description of his terms either because he was, in some situations, paid by the event.   He was truly hourly paid in respect of his usual shifts, however.   He was not ‘monthly paid’ in the sense of being paid for a calendar month in one instalment.   He was required to work for one week, the wages for which were retained.   For those reasons we find he was weekly paid.”

	That reasoning is, it seems to us, at least open to challenge.   It is open to the simple view that if one is paid once a month one is paid monthly, even if the amount paid is referable to a number of weeks.   But we need say nothing further about that because the error here leads nowhere because the Industrial Tribunal held that in any event IGW suffered no loss by reason of Mr Prince having given only a week’s notice.   On that subject they say:

“We have come to the conclusion that in this particular case the contractual term was for one week’s notice of termination by the employee.   We therefore find that the respondents’ counterclaim for breach of contract in failing to give adequate notice fails.   However, if we were finding that the applicant was in breach of that term we would have found that the respondents have failed to prove any loss arising from the breach because of the inconsistencies of their evidence.”

	Earlier, in their para 10, they had said:

“We are not satisfied that the respondents’ evidence showed any real loss in relation to the applicant’s failure to work the period from 5 to 30 April 1997.”

	- 30 April being the date to which he would have worked if he had given a month’s notice.   Also they say in their para 11:

“It is clear to us that the respondents’ figures are exaggerated at best.”

	So, even if the construction of the notice provision had been held in IGW’s favour, its claim would still have failed.   The Industrial Tribunal, on the issue of quantum, did not accept IGW’s evidence.   They held it to be exaggerated and inconsistent.   So that whilst we see that the point of law and the point of construction is highly arguable in IGW’s favour, on that finding as to quantum it would in any event lead nowhere.

	The second argument that is presented for IGW is concerned with training costs.   IGW’s general company conditions of employment have a clause that provides as follows:

“5.    COURSES
Employees will from time to time be expected to attend courses, those not doing so may find themselves no longer capable of performing to Company standards and as such no longer employable by the company.
Training is expensive and as such if an employee leaves before the atomised [amortised] value of the course, or training, has expired the Company reserves the right to compensation from the employee for that part of the course or training that has not been atomised [sic].  The cost and atomised [sic] period of all training will be advised to all staff in advance of training commencing.”

	Now, it makes good business sense that the cost of training and the amortised period over which its cost is to be spread is to be advised to staff in advance of the hearing.   One can imagine, for example, that a man who hopes to move away from IGW in, say, six months time on giving a month’s notice would wish to know, when he is offered or required to go on a course that it will cost say £1600 and that that £1600 is to be amortised over two years.   He will wish to know those figures, both the cost and the period of amortisation, because if he was told that he might decline the course rather than be obliged to repay, let’s say, £1200 when he leaves in six months time.   So it is crucial to the fair working of the provision that the employee should be told both the cost and the period of amortisation.   It would be, as it seems to us, unreasonable for the employer to be able to insist on one part, the repayment, and yet to be able to ignore the other part, namely the giving of advance warning of the cost and amortisation period.   We would expect in law the obligation was to be construed as mutual in the sense that the employer could not claim under one part of the clause unless he had performed the other part of the clause.

	As to that, the Industrial Tribunal said this:

“19.   It is agreed that the applicant received some training in [or] about September 1996 which he was required by the respondents to do, called an IVR Course.   We accept his evidence that he was not told the alleged cost of that course before the training started, nor was he told the period over which the respondents proposed to write off the cost, or the ‘atomised’ period as Mr Workman called it.   We think that by the world ‘atomised’ the respondents meant ‘amortised’.  We accept that a number of employees were required to attend the same training course.   The total cost of a trainer presenting the course to the employees was £2,000.   We accept the part referable to the applicant was £145, as the respondents claim.”

	Then they went on, on the next page:

“23.   We construe that clause to mean that the respondents have bound themselves to notify the employee of the ‘cost’ and ‘atomised period’ of the training of the course in advance.   What they meant by the ‘atomised’ period was the period of time over which they proposed notionally to write off the cost of the course.   We find that they failed to do that in this case...   We find that they were in breach of that term and that the effect of that is that they cannot enforce that term against the employee...”

	 Accordingly they concluded:

“We therefore find that the respondents’ counterclaim in respect of that fails.”

	We detect no error of law in that conclusion.   

	The third head of appeal is that there was an accident when Mr Prince, driving a company vehicle, is said to have damaged a customer’s car, causing the company loss as it had to repair the customer’s vehicle.   The company was insured but claims from Mr Prince the £100 excess.

	The Notice of Appeal refers to a clause in the general company conditions of employment, and it was referred to also at the Industrial Tribunal.   It says:

“Any fault accident sustained by an employee driving a vehicle belonging to, or in the custody of the Company, will carry a minimum One Hundred Pounds Insurance Excess.”

	To claim for this £100 seems to us a quite hopeless claim by IGW.   On the facts of this matter there was not damage to the company’s vehicle but damage by it.   The expression ‘any fault accident sustained by an employee driving a vehicle’ contemplates not damage caused by the employee but sustained by an employee.  In other words that the company or the employee suffers it.   To make that obvious the heading of the clause is as follows:   “Accident Damage To Company Vehicles”.  But what was alleged here was accident damage by a company vehicle.   So that even on the clause which was relied upon, the IGW claim would fail against Mr Prince.   But there is a further difficulty in IGW’s way and that is this; at para 18 the Industrial Tribunal held as follows:

“We come to the conclusion that in order to claim this sum by way of counterclaim the respondents have to establish to us that the accident was the applicant’s fault.   We find that they have not done so.   We accept the applicant’s evidence to us on oath about it that he did not move his vehicle.   The evidence which the respondents had at the time to the contrary was not, in our view, very clear.  In our view they have not even established to us that they conducted a full or proper investigation at the time.”

	On that basis, Mr Prince did not move his vehicle, so that it would be very difficult for the employer, IGW, to take the matter further.   In any case, as we have indicated, the clause relied upon is dealing with a separate subject.   

	We have, of course, paid attention to the skeleton arguments and we thank Mr Brown for the assistance that he has given us.   We hope we have clarified to some extent the position on employment by the week or by the month.   We have found no error of law, that apart, in the reasoning of the Industrial Tribunal and, as we have indicated, that particular error does not lead to any conclusion that assists IGW.   Accordingly we dismiss the appeal.