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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Rutherford Hotels Management Company Ltd v Coleman & Anor [1999] UKEAT 1238_98_1202 (12 February 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1238_98_1202.html Cite as: [1999] UKEAT 1238_98_1202

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APPEARANCES

 

For the Appellant	No appearance/representation by/on behalf of the Appellant


 


HIS HONOUR JUDGE CLARK: The Applicants before the Carlisle Employment Tribunal, Mr Coleman and Miss Kendrick, boyfriend and girlfriend, both commence employment with the Respondent as hotel workers at their Low Wood Hall Hotel, Gosforth, Cumbria on 11 September 1997. It was their pleaded case, in Originating Applications presented on 12 March 1998, that on 14 December 1997 the hotel manager, Geraldine Turner, asked Mr Coleman to sign a new contract of employment which radically altered his existing terms and conditions of employment. He declined. On the following day she handed him a letter giving him 1 week's notice of dismissal. Following his dismissal Miss Kendrick left on 16 December of her own accord.

They claim that they had received no wages after 28 November. Mr Coleman claimed 17 days pay, totalling £326 and Miss Kendrick claimed 11 days pay totalling £211. By their Notices of Appearance, the Respondent contended:

(a) that the Applicants had refused to return keys on leaving the employment resulting in a loss to the Respondent of £907.43 for a replacement master key system. They counter-claimed for damages;

(b) that each Applicant had been paid up to 6 December 1997.

The cases came before a Chairman, Mr P.G. Rennie sitting alone on 23 June 1998. Both Applicants appeared in person. There was no attendance by or on behalf of the Respondent. Accordingly the Chairman took oral evidence from the Applicants, and took into account the contents of the Notices of Appearance in accordance with Rule 9(3) of the Employment Tribunals Rules of Procedure 1993.

He accepted the Applicants' evidence and, in the absence of evidence from the Respondents, whether oral or documentary, made certain findings of fact which are set out in paragraph 3 of his extended reasons dated 17 August 1998. In particular he found, at paragraph 3(e) that on 16 December Miss Kendrick gave the Respondent 1 week's notice of resignation expiring on 23 December. She was required to work that notice and would have done so but for incapacity due to illness.

In the result he awarded Mr Coleman the sum of £326.94 in respect of wages unpaid for the period 6 to 22 December 1997, and Miss Kendrick the sum of £346.17 for the period 6 to 23 December 1997. The Respondents counter-claim was dismissed on his findings of fact.

Against that decision the Respondent company appeals. This is a preliminary hearing held to determine whether or not the appeal raises any arguable point of law.

The Respondent does not appear today, but we take into account the contents of their solicitors' letter dated 10 February 1999 and the grounds of appeal contained in the Notice of Appeal.

The grounds of appeal are that there was no evidence to support the Chairman's findings of fact. By that it is said that there was no documentary evidence to support the Applicants' cases.

That may well be. But they gave oral evidence which, in the absence of contradictory evidence from the Respondent, the Chairman was entitled to accept. The appeal, is in our view misconceived.

We should deal with one specific point. It is right to say that in her Originating Application, Miss Kendrick claimed wages up to 16 December, when she said she left of her own accord. That may appear to be inconsistent with the Chairman's finding, based on her oral evidence that she gave 1 week's notice on 16 December but was unable to work out that notice due to illness. No doubt that forensic point would have been made on behalf of the Respondent had they attended the hearing. They did not do so.

Accepting, as we must, the Chairman's finding at paragraph 3(e) of his reasons, is Miss Kendrick entitled to payment for the period of notice which he found she gave? We think that the Chairman was correct in law in saying that she was so entitled under the provisions of Section 88(1) and (3) of the Employment Rights Act 1996.

However we think that the better view is that that week's pay is strictly recoverable as damages for breach of contract rather than by way of unauthorised deductions from wages. See Westwood v Secretary of Trade for Employment (1985) ICR 209 (House of Lords).

In these circumstances, we affirm the awards made by the Chairman, but in respect of Miss Kendrick the sum of £134.62 relating to the week's notice period is recoverable by way of damages for breach of contract, in respect of which the Tribunal has jurisdiction by virtue of Article 3 of the Employment Tribunals (Extension of Jurisdiction) Order 1994, and the balance in her case is recoverable under Section 13 of the Employment Rights Act 1996.

The appeal is dismissed.