Appeal No.	EAT/411/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 July 1999

Before
HIS HONOUR JUDGE H WILSON
MR I EZEKIEL
MR E HAMMOND OBE

MR R DOSHI	APPELLANT

LONDON GENERAL TRANSPORT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D IBEKWE
(REPRESENTATIVE)
PTSC
31b Mervan Road
Brixton
London SW2 1DP

	JUDGE WILSON:	This is the Preliminary Hearing in the Appeal by Mr Doshi against the decisions reached by the Employment Tribunal sitting at London (South) on 3 days in 1997 and 1998.  I shall refer to the parties in their original status as Applicant and Respondent.

1	The Applicant alleged by his Originating Application, that there had been unlawful deductions made from what was due to him and there had been action short of dismissal.  That was amplified to be allegations of breach of Section 13 of the Employment Rights Act 1996 of Section 146 of the Trade Union & Labour Relations Act 1992 and of other statutory requirements as well.  In the event, the Employment Tribunal dismissed all the Applicant’s complaints.  Today, he has been represented, as he was not represented before the Tribunal, by Mr Ibekwe.  Before the Tribunal, he was represented first by Mr Narayan and subsequently, Mr Pedro of Counsel.

2	Mr Ibekwe has limited his submissions to the matter of unlawful deductions from wages, the issue of constructive dismissal and the claim under Section 104 of the 1996 Act.  He does not appeal the dismissal of the cases under Section 146 and 152 of the Trade Union & Labour Relations Act 1992.  He says that so far as the unlawful deductions from wages was concerned the Employment Tribunal applied the wrong test.  The Applicant was entitled to a finding of unlawful deductions, even though everything was eventually paid, because of its relevance to the issue of constructive dismissal.

3	The Tribunal dealt in detail with this aspect of the matter.  It stated in paragraph 7 that: 

Mr Johnson, for the Respondent, had demonstrated the full sequence of events relating to the payment of the sick pay to the Tribunal by producing the company’s records and the Applicant’s pay statements.  From these, it was clear that the sick notes had been delivered late.  Payment in full had been made to the Applicant as soon as was practicable after receipt of the relevant notes.  The Applicant was off sick for 57 days but was paid sick pay for 58 days.  Mr Narayan on behalf of the Applicant said that the sick pay had been paid in full after the first IT.1 was lodged.  There is therefore, no pay wrongfully deducted nor outstanding and the Applicant’s claim under this head is accordingly dismissed.  The Tribunal finds that the late payment of sick pay (which is admitted by the Respondent) was due to the fact that the Applicant delivered his sick notes late and had nothing to do with his union membership.  

4	That quotation from paragraphs 7 and 8 of the Decision involves findings of fact behind which we are not permitted to go.  Mr Ibekwe says in fact that the payment should have been for 61 days sick pay.  If that were indeed the case, this is not the forum to deal with it.  That is a matter to have taken back to the original Tribunal on review.  

5	As regards any entitlement to a declaration, there is nothing in the relevant part of the statute which provides for such a declaration.  We do not agree that the wrong test was applied by a Tribunal.

6	So far as constructive dismissal is concerned, the matters relied on by Mr Ibekwe, are first of all the difficulties over the late payment of sick pay.  Secondly, the failure by the Respondent to notify the Applicant’s family of his collapse when he attended for interview on the 20th January.  Thirdly, the request that the Applicant should attend for an interview first with the company doctor and the next day with the company representatives to consider his position in the light of what the company doctor found.  It is alleged that those are fundamental breaches of mutual trust and confidence by the Respondent towards the Applicant which justify his resignation.  

7	The first point disappears because the Tribunal found no unlawful deductions in the sense that there was nothing outstanding.  So far as the second is concerned, the Applicant had been accompanied by Mr Ibekwe to the interview.  Mr Ibekwe was aware of his collapse and the company did not notify the family in the reasonable belief that Mr Ibekwe would do so.  At worst, that is misunderstanding.  With regard to the third matter, in our collective understanding, that is usual commercial and business practice.  There is nothing exceptional about it at all, particularly since the doctor’s finding was that the Applicant was fit to return to work in respect of the finger injury.  However, the doctor advised that the causes of his collapse some 3-4 weeks earlier should be investigated.  We find, therefore, that there is no substance in the matters relied on because they are not fundamental or they were disposed of as not having been substantiated.  The Employment Tribunal found that the allegation was wholly unsubstantiated and there was therefore, and there had been no fundamental breach of contract by the Respondent.  

8	So far as the third point relied on by Mr Ibekwe under Section 104 of the Act is concerned, that depends upon there having been a finding of constructive dismissal and there was none.  The Tribunal had found that there was no evidence that the Applicant brought proceedings to enforce a right, nor that he alleged that a statutory right had been infringed.  Mr Ibekwe says “Well, these proceedings themselves were brought to enforce those rights”, but the Tribunal had found that they were not there to be enforced, since they had been discharged.  Furthermore, the Tribunal found that he’d resigned and that therefore, the matter must be dismissed.

9	We have considered carefully all the matters urged by Mr Ibekwe but we cannot find that they have any foundation in law and there is no reason to suppose that if this matter proceeded to full argument it would have any chance of success.  Accordingly, the Appeal is dismissed at this stage.