Appeal No.	 EAT/145/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 April 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR J R CROSBY
MR P M SMITH

DREWETTS LTD	APPELLANT

MR D CHARLTON	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	No Appearance 
by or on behalf
of the Appellant	

JUDGE CLARK

1	The Applicant below, Mr Charlton, commenced employment with the Respondent caterers as Food & Beverage Manager in February 1999.  On 28 June 1999 he broke his ankle at work.  He attended hospital and was given a weight bearing cast and then a full weight bearing cast.

2	The Chairman, Mr J A Threlfell, sitting alone at the Leicester Employment Tribunal, hearing his complaint of breach of contract on 15 December 1999, found that he was told by his doctor that once the latter cast had set he would be able to carry out his normal work and would be able to drive vehicles.  On 12 July the Applicant notified the Respondent that he was ready to return to work.  However, the Respondent thought that it would be unsafe for him to do so, pointing to insurance problems, particularly if he drove a vehicle with a cast on.

3	The Applicant was given notice of redundancy dismissal on 29 July.    He was told that he would not receive payment for the months of July and August unless he produced a medical certificate.  He did so, producing a certificate which we have seen.  That certificate dated 10 August 1999, states that the Applicant should refrain from work until 1 September 1999, adding 

“left ankle injury continuous disability 26/6/99 onwards”.

4	As a result the Appellant received Statutory Sick Pay (SSP) for July and August 1999 and 1 week’s full notice pay for his notice period.  He also received accrued holiday pay.

5	By his Originating Application presented to the Employment Tribunal on 13 October 1999 the Applicant claimed that he should have received his full wages for July and August 1999 as opposed to SSP.  Failure to make full payment constituted breach of contract and/or unlawful deductions from wages.  He also claimed 4 weeks notice pay.

6	The Chairman, in a decision with extended reasons promulgated on 16 December 1999, rejected the claim for notice of pay but upheld the former claim.  He found that in failing to obtain medical evidence the Respondent was in breach of contract in refusing to let the Applicant work when he and his doctor said that he was fit to do so.

7	He awarded the Applicant damages totalling to £715.92, representing the difference between ordinary net pay and SSP for the months of July and August.

8	Questions of fact are for the Employment Tribunal, however, an Employment Tribunal will fall into error if it makes findings of fact which are contrary to or unsupported by the evidence.

9	The Chairman did not hear from the Applicant’s doctor; he heard only the Applicants assertion that the doctor had passed him fit.  That assertion is wholly inconsistent with the doctor’s own medical certificate, which declared him unfit for work throughout July and August.

10	That appears to be the point taken by the employer in this appeal.  There is no representation before us today but on the basis of the papers and our understanding expressed in this judgment, we think that the point is arguable and we shall allow the appeal to proceed to a full inter partes hearing.  For that purpose we shall direct that the case be listed for ½ day category C.  There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing.  Copies of those skeleton arguments to be lodged with the Employment Appeal Tribunal.

11	Having considered the PHD forms put in by both the Applicant and Respondent as they were below, we take the view that unusually this is a case in which the Chairman’s Notes of Evidence would be helpful for the determination of the point in this appeal.  Accordingly we direct that the Chairman be requested to provide his full notes of Evidence of this short hearing.