Appeal No. EAT/1480/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 May 2002

Before
MR RECORDER BURKE QC
MR P R A JACQUES CBE
MISS D WHITTINGHAM

SECRETARY OF STATE FOR TRADE & INDUSTRY	APPELLANT

MR C CAMPBELL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS M DEMETRIOU
(of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London SW1H 9JS	

MR RECORDER BURKE QC

1	This is the preliminary hearing of an appeal by the Secretary of State for Trade & Industry against the Decision of an Employment Tribunal sitting at Nottingham, sent to the parties on 24 October of last year.  

2	By that Decision the Employment Tribunal, in the person of Mr Keevash, sitting alone, concluded that the Applicant, Mr Campbell had, prior to his dismissal by the administrators of his employers, Trent Valley Restoration Ltd, on 15 December 2000, been an employee of that company of which he was a director and majority shareholder. 

3	The company was in administration at the relevant time.  It is not necessary to go into details, the Secretary of State was substituted as Respondent for the company, and Mr Campbell pursued his claim against the Secretary of State, pursuant to part 11, chapter 6 and part 12 of the Employment Rights Act 1996.  

4	The Tribunal awarded him a total of just over £20,000.  Of that sum £6,555 was in respect of a redundancy payment; £9,150 was in respect of notice pay and pension contributions; £4,350 was in respect of arrears of pay and an unlawful deduction of holiday pay.  By the Notice of Appeal the Secretary of State seeks to appeal against each element of the last two awards; there is no appeal against the Tribunal’s finding in respect of redundancy pay.  

5	Of £9,150 awarded in respect of pay during the period of notice, and pension contributions, £6,900 was in respect of pay, made up of twelve weeks at £400 per week, less earnings obtained from subsequently gained alternative employment.  

6	The first ground of appeal is that there is a statutory limit to £230 in respect of any one week, pursuant to section 186 of the Act, and therefore no more than twelve weeks at £230 could have been awarded.  This is plainly arguable; indeed, there may be a limit to eight weeks in section 184.  Whether that is so or not, this line of attack upon the Decision of the Tribunal is arguable and should go forward for a full hearing.  

7	Logically, next we take the Notice of Appeal’s attack on the weeks of holiday pay, two weeks at £900.  Quite apart from the fact that the Decision is, strangely as it seems to us, based on gross not net earnings, the statutory limit of £230 per week to which we have referred appears arguably to apply to this head too; and thus there is here a second arguable ground of appeal.  

8	Next, the Tribunal awarded £1,800 arrears of wages for two weeks before the dismissal, again at £900 per week gross.  The appeal against that award is based on the argument that arrears of pay can only be awarded against the Secretary of State for a period prior to the date on which the employer has gone into administration or insolvency, whichever it is, by virtue of section 182 and section 185 of the Act and that the Tribunal was wrong to award arrears of pay for a period between the entry of the employers into administration on 4 December and the dismissal of the employee on 15 December.  That, too, is arguable.  

9	Finally, in relation to pension contributions, the argument is that pension contributions do not constitute a debt under section 184 of the 1996 Act and if recoverable at all, can only be recovered under a different process and a different Act, and there are other arguments.  All are plainly arguable. 

10	For these reasons, in our judgment, the whole of this appeal, as set out in the Notice of Appeal, should go forward for a full hearing.