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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mayne v. G & P Site Maintenance Services Ltd [2002] UKEAT 1442_01_1803 (18 March 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1442_01_1803.html Cite as: [2002] UKEAT 1442_1_1803, [2002] UKEAT 1442_01_1803

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APPEARANCES

 

For the Appellant	MR J N GALBRAITH MARTIN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE J McMULLEN QC

1. This case is being heard under section 28(3) of the Employment Tribunals Act 1996, because of an unforeseen absence of a member of the Tribunal, the Applicant having consented to this appeal being heard by a judge and one member.
2. The nature of the case is breach of contract and unlawful deductions. It arises from a Decision of the Ashford Tribunal, Mr G W Davis, Chairman, sent to the parties on 5 October 2001 with Summary Reasons, and with Extended Reasons on 7 November 2001.
3. The Applicant represented himself, the Respondent was represented by its Director, Mr Lawson. The Applicant claimed unfair dismissal and unlawful deductions having been made from his terminal pay. The issue before the Tribunal therefore was construction of the documents, the contact and statutory interpretation. The Tribunal decided that the Applicant was fairly dismissed and that he had suffered an unlawful deduction of wages, namely holiday pay owed to him, and the Respondent was ordered to pay him £989.04.
4. The Applicant had been employed from 1 March 1999 to 5 February 2001, by the Respondents who appear to be engaged on site maintenance, the Applicant being employed on pipe work. The Respondents accepted that the Applicant was made redundant; the Respondents' business was in financial difficulty. The Applicant himself had been off sick. The Tribunal found that the Applicant was fairly dismissed and no issue arises on appeal against that Decision.
5. The Applicant appeals on three grounds. He has had the advantage today of the services of Mr Jason Galbraith Martin, through ELAAS. We agree these three issues are reasonably arguable. They are first, notice pay. It is contended that the Tribunal erred in failing to be consistent as between net and gross pay for the calculation of notice money. The Respondents paid two weeks money in lieu of notice, and the Applicant is entitled to another two weeks. Whether the calculation is gross or net, and we believe it should be net, consistent figures should have been used on the right and on the left hand sides, so that taking that approach, the Applicant would have been entitled to £1751 minus £819, equals £931.39.
6. Secondly,

a) it is submitted that this was a claim that unlawful deductions had been made. Overpayment of wages is an excepted deduction: see section 14 of the Employment Rights Act. But any payment which is referable to a redundancy is not so excepted: see section 27(2). The Applicant was paid £720 by the Respondents who believed he was entitled to statutory redundancy pay. The Applicant was not, because he did not have sufficient service.

b) Alternatively, if the claim were breach of contract, the measure of damages would be the figure which would have taken account of his employment up to the date proper notice would have expired. That date would have been after the second anniversary of his employment and he would therefore have been entitled to a redundancy payment.

7. In either case, the figure of £720 should not have been set off, in our very preliminary view.
8. Thirdly, the daily rate of pay for the purposes of calculating outstanding holiday pay appears to be incorrect from the Respondents' own documents. These betray a daily rate of £109.61 in 2000 and 2001. The Tribunal, in paragraphs 13, 14 and 15 of its Extended Reasons, comes up with a much lower net daily rate, which we think is based upon a division of the annual salary by 365. This appears to us, in our preliminary view, to be an error. Assuming there is no dispute on the number of days found to be due on paragraphs 13-15, if at a full hearing the correct rate is determined to be either the figure we have given, or some other figure, a simple calculation can be made.
9. We are grateful to Mr Galbraith Martin for the provision of his services today. We will order the Chairman's Notes of the agreement which the Tribunal recorded the Applicant made as to the figures put forward, and to that extent only.
10. Category C, time estimate two hours.