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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Dean v. Latona Luxury Ltd (Rev 1) [2010] UKEAT 0377_09_2801 (28 January 2010) URL: http://www.bailii.org/uk/cases/UKEAT/2010/0377_09_2801.html Cite as: [2010] UKEAT 377_9_2801, [2010] UKEAT 0377_09_2801 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE REID QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
REVISED
For the Appellant | MR A KAMARA (Representative) Free Representation Unit |
For the Respondent | No appearance or representation by or on behalf of the Respondent |
SUMMARY
CONTRACT OF EMPLOYMENT: Implied term/variation/construction of term
A was employed by B. When B became insolvent C took over B's business and employed A in circumstances where there was no TUPE transfer. A later left C's employment and claimed sums allegedly underpaid. C asserted A had been employed on C's standard terms of employment (less generous than B's) and was not entitled to the sums claimed. The ET in upholding C's submission overlooked a letter sent by C to A under which he was told he would in effect be employed on the same terms as before. Appeal allowed.
HIS HONOUR JUDGE REID QC
Introduction
The Background
"Dear John,
Mr and Mrs Edwards of Wrenwell Hotels Limited have decided to terminate and withdraw from the partnership with Latona Luxury Limited, from the Garden House Hotel at the Bishops Court Resort, to enable them to devote more time to their family and other business interests."
"Latona Luxury Limited and I will be taking over the full running and management of Bishops Court as a whole [because Latona Luxury had previously been running other parts of the overall resort] as from Tuesday, 11 July 2006 pm [although it appears that transfer only took place the following day]. On that day a short staff meeting will be held followed by a heads of department meeting. [and this is the important sentence] There is total continuity with running the going concern business and therefore your wages, accrued holiday and holiday arrangements are all fully protected and will be honoured.
I look forward to successfully working together for the benefit of the business, hotel and ourselves combined."
"There is total continuity with running the going concern business and therefore your wages, accrued holiday and holiday arrangements are all fully protected and will be honoured."
"The matter does not end there. The evidence that I have is that Mr Dean wrote to the respondent querying the issue of his outstanding pay but never received any substantive or satisfactory response. The Statutory Grievance Procedure requires that an employer should invite an employee to a meeting to discuss the matter but no such invitation was issued and I am satisfied that the respondent is in breach of its obligations in this respect. S.31 Employment Act 2002 requires me to uplift any award I may make by at least 10% up to a maximum of 50%. So be it. There must be an uplift. I have considered how much that should be. I bear in mind that the figures are small but it does seem to me that all this could have been avoided, first of all, if Mr Dean had been given a statement of terms and conditions of his employment, as he should, and secondly, if the respondent had addressed the situation and met him to discuss the position and explain their stance to him. I uplift the sum of £27.00 by 50%, that is to say, a further £13.50."
"In as much as I have made an award, I am required to award a further sum as a consequence of failing to provide a statement of terms and conditions of employment. S.38 Employment Act 2002 says that I shall award a figure of 2 weeks' pay or I may, if I think it just and equitable to do so, award a higher amount equal to 4 weeks' pay. I have given consideration to whether or not the appropriate award should be 2 or 4 weeks' pay. As I have indicated, all this could have been avoided if the respondent had observed its responsibilities. Much time and effort could have been avoided and I have to say that, although the amounts involved are not great, I regard this as quite a serious failing on their part and I have come very close to awarding 4 weeks' pay. On balance, however, I have decided that it would be appropriate to award 2 weeks' pay in the sum of £540."
Conclusion