Appeal No.	EAT/0965/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 December 2001

Before
HIS HONOUR JUDGE D PUGSLEY
MR J C SHRIGLEY
MR P M SMITH

MS B BANTON	APPELLANT

AMICUS GROUP LTD (FORMERLY SWALE HOUSING LTD)	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR EDWARD JNR
(Representative)
Cain & Abel Law Firm
239 Missenden
Inville Road
London 
SE17 2HX	

JUDGE D PUGSLEY
1.	In this case, the Applicant, by order of the Tribunal, was found to have been unfairly dismissed. The Respondents were ordered to pay compensation and there was an award made of £5537.27. Also the Respondents unlawfully failed to pay wages for the Applicant amounting to £4338.01.  We accept this is a case in which we can consider the case notwithstanding the fact these are only summary reasons.

2.	Now we have to say that there are issues that arise here in that the Tribunal ordered the net compensatory award of £5097.27 and also ordered the Applicant to pay £4338.01 of wages. It is interesting to note that in the Tribunal’s decision, the Tribunal made an order reducing the compensation because, they say, there was a 30% responsibility upon the Applicant. 

For although the principal responsibility for ensuring that an employee is correctly paid is the Respondent’s, we find that the Applicant, to some degree, contributed to the dismissal by her actions. We fully accept that the Applicant and her family were thrown into turmoil by the serious illness of her mother from cancer and the Applicant did not have much attention to the detail of the salary she was receiving. However, the Applicant received a clear and brief communication from the Respondent confirming that she was not entitled to a pay review. The Applicant took no action as a result of this document until December when she communicated with her area manager as discussed. On balance, the Applicant’s action or lack of action against the fact she had severe personal problems and against the fact she was in an insecure position because of her temporary status, we think it is just and equitable to reduce her compensatory award by 30%. 

3.	One of the matters that concerns us is that, in that the Applicant had a contractual right to be paid certain sums of money and as there was a claim for breach of contract we are somewhat concerned as to the extent to which there is power, in a breach of contract case, to hold that she is at contributory fault where she is not being paid her contractual entitlement.

4.	Moreover, the whole area of contributory fault, in an action of constructive dismissal, is a difficult one. It must be said that there is, intrinsically, no inconsistency with a finding of constructive dismissal and the fact that the employee contributed to that dismissal. However, it would seem from the authorities to be an area that must be looked at with considerable care.  We also consider that Ground 3 of the Grounds of Appeal raises arguable issues.

5.	In this case, we do consider there are arguable grounds on grounds 1 & 3.  For ourselves, we question whether the other ground, as drafted, are really necessary.  Ground 2 could really be said to be a subsection of the argument under ground one, namely whether or not it was right in law to impose a contributory fault of 30%. We give Mr Fred Edward the opportunity to amend his grounds of appeal in accordance with this judgment such amendment to be within 28 days of this judgment.  

6.	In view of the full nature of the summary reasons we see no reason to allow the appeal on the refusal to provide extended reasons as we have exercised our discretion to hear this case on the summary reasons.