Appeal No.	EAT/1068/01/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 November 2002

Before
HIS HONOUR JUDGE J BURKE QC
MR I EZEKIEL
MS B SWITZER

MR E NEGATU	APPELLANT

STORE SECURITY SERVICES	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised
______________________________________________________________________________

	APPEARANCES

For the Appellant	The Appellant in person	
For the Respondent	No appearance or 
representation by or 
on behalf of the Respondent

HIS HONOUR JUDGE J BURKE QC

1	This is an appeal by the Applicant before the Employment Tribunal, Mr Negatu, against the Decision of the Employment Tribunal sitting at London Central and chaired by Mr Walker, sent to the parties with Extended Reasons on 18 July 2001.  

2	Mr Negatu had put forward in his Originating Application, amplified to some extent by a witness statement, dated 20 June 2001, the day before the Tribunal’s hearing of the evidence, a number of claims against his ex-employers that he was entitled, under his contract of employment to payment of various sums.  The Tribunal awarded him some sums, but did not award him by any means all that he was seeking; hence this appeal.  

3	Unfortunately, the employers have not been represented at the hearing of the appeal.  Their solicitors wrote a letter to the Employment Appeal Tribunal dated 11 October 2002, saying that they would not be lodging any Skeleton Argument and would not be attending, but that they wished to rely on the decision of the Tribunal and the employers’ answer to the Notice of Appeal, that answer being dated 27 August 2002.  We have considered the terms of that answer with care.  

4	Mr Negatu has appeared in front of us on his own behalf.  Whether Mr Negatu had a full understanding of precisely what was happening before the Tribunal may be in some doubt; and it is for that reason particularly regrettable, though understandable, that the employers have not been represented before us to explain in more detail or with greater clarity what actually happened.  We, of course, have to do the best we can on the material which is placed before in those circumstances.  

5	We propose to examine Mr Negatu’s appeal, by looking at each of the seven claims which Mr Negatu has listed in a Skeleton Argument dated 10 June 2002, which was signed by him and which he tells us sets out the core of his complaints about the Tribunal’s decision.  We say “seven claims”.  The Skeleton appears to refer only to six, but two of them bear the same number, namely number four; hence we are considering seven, not six, claims.  

6	The background is that Mr Negatu was employed by the employers from early October 2000 to 19 March 2001 as a security guard.  He did not at any time have either a written contract of employment or a statement in writing of the terms and conditions of his employment.  Thus, where there was a dispute between Mr Negatu and the employers as to any individual term of his contract of employment which was relevant to the issues before the Tribunal, it was for the Tribunal to decide what such term was, and to explain why the Tribunal so found.  If the dispute on any particular claim was only one of fact, then it was for the Tribunal to set out their conclusion as to the relevant facts.  

7	In each case the Tribunal was bound to explain the reasons for their Decision in such a way as to enable the parties to understand from the Tribunal’s Decision why they had lost or why they had won, respectively, pursuant to the decision of the Court of Appeal in Meek -v- City of Birmingham District Council [1987] IRLR 250.  

8	With that introduction, we turn to each of the seven heads of claim.  The first is Mr Negatu’s claim to payment in respect of accrued holiday which he had not received at the date of the termination of his employment.  At the time the proceedings were issued, he had only been paid for six days’ holiday, whereas he claimed that he was entitled to ten days’ holiday pay.  He claimed that he was entitled to that holiday pay at the rate of £5.25p per hour and for eleven hours per day, that being, he said, his normal working day.  

9	The employers agreed by the witness statement of the relevant manager, Mr Skelton, that Mr Negatu was indeed entitled to ten days of holiday pay.  They had already paid, in respect of holiday pay, £250.  They agreed, as the Tribunal record in paragraph 10 of their decision, that he was owed a further sum of £136, making the total £386.  How that sum was calculated is not at all clear; there may or may not have been a dispute as to whether the rate of pay was £5 per hour, plus a 25p per hour bonus for attending on time, or £5.25 per hour.  The Tribunal made no finding as to that; but either at £5 or at £5.25 per hour, ten days of holiday at eleven hours per day would come to substantially more than £386.  

10	Mr Negatu tells us that at no time did he accept that the amount which the employers admitted was due at the Tribunal was all that he was claiming, or enough to satisfy his claim in relation to holiday pay.  Unfortunately, the Tribunal’s decision does no more than record what the employers accepted or admitted and does not in any way explain why Mr Negatu was not awarded the balance between the amount which the employers agreed should be paid at the Tribunal and the amount that he, Mr Negatu, was actually claiming.  The basis of any explanation of the difference between those two figures simply does not appear in the Tribunal’s Decision.  

11	The employers’ response to the Notice of Appeal, at paragraph b.2 of the grounds which they set out in that response, provides no further explanation of the Tribunal’s approach.  We are left with the position in which we simply do not know, because the Tribunal’s Decision sets out no reasons, why Mr Negatu did not receive more in relation to his claim.  

12	It is to be noted that, at paragraph 13 of the decision and also in the decision itself, at the beginning of the document which comprises both the decision and the Extended Reasons for that decision in the normal way, the Tribunal refer to a rate of £4 per hour.  It is not clear whether the sum of £386 was based on some calculation using a £4 per hour rate.  If it was, that does not provide any explanation of how Mr Negatu’s claim came to be restricted to £386 because, although there may have been an issue as to whether his holiday pay should be calculated at £5.25 per hour or £5 per hour, we can see nothing in the decision nor in the material before us which justified the use of a rate of £4 per hour.  It is to be noted that Mr Skelton’s witness statement refers to the rate as £5 per hour.  

13	For these reasons, we see no alternative but to remit to the Employment Tribunal what appears to us to be an outstanding issue as to whether or not Mr Negatu was entitled to holiday pay over and above the £386 which he received as a result of the Tribunal’s decision.  While Mr Negatu would very much like us to determine this matter ourselves, because a lot of time has passed in relation to sums which are not large, we are simply not in a position to make any such determination ourselves and must remit the matter to the Tribunal to make the necessary determination.  

14	The next item of the seven items in Mr Negatu’s Skeleton is travel costs.  Mr Negatu  tells us that he intended to claim about £700 of travel expenses, but failed to do so by a miscalculation which he appreciated only after the Tribunal’s hearing and the Tribunal’s Decision, he had made.  At the time of that hearing he was claiming only, he tells us, about £400 by way of travel expenses.  The Tribunal concluded that Mr Negatu was entitled to no more than £273.10 by way of travel expenses, of which the balance of £189.10 was outstanding.  

15	The Tribunal say, at paragraph 8, that Mr Negatu accepted that he had only claimed £273.10, and that the Tribunal could not award him expenses he had not claimed, and for which he had not submitted receipts.  Thus it limited his claim as we have set out.  So far as this head of complaint is concerned, firstly, we must make it clear that it not now open to Mr Negatu, who was only claiming some £400 at the time of the Tribunal’s hearing, to seek, because he realised subsequently that he had made a mistake, to increase the amount of his claim.  

16	Secondly, the Tribunal has plainly found as a fact what claim for expenses Mr Negatu had actually made; and they were entitled, both in law and on the facts, to find that he was not entitled to any more by way of travel expenses than that which he had actually claimed.  That being so, we see no error of law in the Tribunal’s approach to the issue of travel expenses, and so far as that head of claim is concerned, the appeal is dismissed.   

17	The next head of claim is a claim for unpaid statutory sick pay.  The Tribunal dealt with that at paragraph 11; they found that, although the claim was made on the basis that Mr Negatu had not been paid statutory sick pay for the seventh day of a week in which he was in fact ill, since he only worked one week of seven days during the whole of his employment, he was not entitled to statutory sick pay in relation to the seventh day.  Plainly Mr Negatu was not contractually engaged on the basis that he would work a seven day week in each week; and that being so, the Tribunal was entitled to come to the conclusion that it did in relation to statutory sick pay; and we have concluded that the Tribunal did not make any error of law in that respect either.  Thus, in relation to statutory sick pay, the appeal is dismissed.  

18	The next claim relates to payment for 28 November 2000.  Mr Negatu tells us, and this is consistent with the documents he presented to the Tribunal, that on that day he was ordered to go to work at a store in Brixton and intended to be there for his usual eleven hour day, namely from 9 o’clock in the morning to 8 pm in the evening.  He says that he was told by the store manager, before the normal day was completed, to go home and leave work and he never received any pay in respect of that day.  At the Tribunal hearing, the employers admitted that Mr Negatu was entitled to seven hours’ pay for 28 November.  Mr Skelton’s witness statement indicated that Mr Negatu had only worked until 6 pm and that the manager of the store had not signed his timesheet for that day and that he was not entitled to any further payment, beyond the seven hours.  They agreed that they had to pay him for the seven hours, but did not agree that he had to be paid for any more.  

19	The Tribunal found, at paragraph 13, that, in the light of the employers’ admission, Mr Negatu was entitled to seven hours pay; but they do not explain why he was not entitled to eleven hours’ pay.  Whether he was or was not entitled to the extra four hours was, or could well have been, primarily based on what his contractual entitlements were on occasions, or on an occasion where he was sent home early; but the Tribunal make no finding as to the terms of his contract in this respect or indeed in any other relevant respect.  

20	Furthermore, the Tribunal awarded him seven hours of pay at the rate of £4 per hour, whereas as we have indicated on the papers we have seen, it looks as though it was much more likely that the appropriate rate was £5 or £5.25 per hour, although the Tribunal do not make any finding as to what the contractual rate was.  Nowhere do they explain why they have used the rate of £4 per hour.  In our judgment, the issue as to whether Mr Negatu was entitled to any pay, beyond the pay for seven hours, and whether for those seven hours, or any further hours for which he was entitled to pay, the rate at which he ought to have been paid was £5.25 per hour, £5 per hour, or, possibly, £4 per hour are issues which have to be remitted for a further decision by the Tribunal.  

21	Once again, we cannot substitute any conclusion of our own on these matters; but what we can and do say is that there are no reasons given by the Tribunal as to why they restricted Mr Negatu to seven hours, and restricted him to the rate £4 per hour, when those matters were plainly in issue before them; and in the absence of Reasons, Mr Negatu cannot  know why he only succeed to that limited extent, and the employers cannot know why they were not ordered to pay more.  

22	The fifth claim which Mr Negatu makes is in relation to the period from 27 - 31 December, in which, to put it broadly, he say that he was available for work, was waiting to be instructed to go to work, but did not receive any instructions to go to work.  There does not appear to us to be a claim in respect of these days in the Originating Application; but reference to these days is made in Mr Negatu’s witness statement, or at least to some of them; and all of them are referred to in Mr Skeleton’s witness statement dated 21 June, paragraph 12.  

23	The employers’ case was that Mr Negatu failed to show up for work on those days, and was simply absent.  Thus there were clear issues of fact.  Mr Negatu said “I was available for work, but I was not called on, I was entitled to be paid for the days when I was available for work”.  The employers said “He was absent from work when we wanted him” and he was not entitled to pay.  They may also have been saying that, even if he was simply not called upon, he was not entitled to pay under the contract during a period in which he was available but they did not choose to use his services.  

24	The Tribunal do not refer to this part of the claim at all in their Extended Reasons.  In the Decision at the outset of the document, containing both Decision and Extended Reasons they say this:
“…The Applicant is not entitled to any further statutory sick pay nor is he entitled to any pay in respect of the period when he remained at home and did not report for duty”

In the absence of any reason for that express conclusion, Mr Negatu does not know, nor do we, whether the Tribunal found that the employers’ case that Mr Negatu had simply remained absent from work was correct on the facts, or whether Mr Negatu’s case that he was available for work, but was not called upon was correct, but that the Tribunal took the view that if he was not actually working, he was not entitled to any pay.  This is a classic case, it seems to us, unfortunately, of a situation in which the parties are simply not informed by sufficient reasons from the Tribunal as to why the Tribunal resolved the issue or issues between them under this head of claim as they did.  

25	In relation to the sixth and seventh claims, namely claims that payment in respect of 19 January, a day when Mr Negatu says that he was instructed to go to the store at Streatham, but then, wholly, he would say, impractically, was told to go to Feltham, and 20-24 January, days when, apart from 23 and 24 to which we shall make reference in a moment, the situation was similar to 27 - 31 December, the same pattern appears.  These claims are not dealt with expressly by the Tribunal; they are decided only by the one sentence from the decision which we have quoted; and no reasons are given.  

26	In relation to 23 and 24 January, Mr Negatu tells us that he was on those days appearing in an Employment Tribunal in some other case, and had been given leave to attend by his employers.  Whether that was leave to be absent with pay or leave to be absent without pay, does not appear from the Tribunal’s decision, and we simply do not know.  

27	The unhappy fact is that those further claims in relation to payment for dates in January are not the subject of any reasons given by the Tribunal so as to enable the parties before us to know why the parties respectively won or lost.  The decision on those issues is therefore not a decision which can stand as a matter of law, and we have no alternative but to remit those matters back to the Tribunal.  

28	Accordingly, our decision, looked at as a whole again, is this: so far as the award of travel expenses and unpaid statutory sick pay are concerned, Mr Negatu’s appeal is dismissed.  All other matters set out in his Skeleton Argument of 10 June 2002, which in order that our decision should be absolutely clear, will be attached to our Order, are remitted to be re-heard by an Employment Tribunal.  So far as the holiday pay is concerned, the remission is limited to that amount in excess of £386 which the Tribunal awarded which was claimed by Mr Negatu.  

29	We take the view that in all the circumstances of this case, the remitted matters should be heard by a different Tribunal, and not by the same Tribunal as that which reached the decision which we have been examining in this judgment.