Appeal No.EAT/1442/01 AM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 2002

Before 
HIS HONOUR JUDGE J McMULLEN QC
MR D NORMAN
MRS R A VICKERS

MR W A MAYNE	APPELLANT

G & P SITE MAINTENANCE SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR W A MAYNE
(the Appellant in Person)	
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT	

JUDGE J McMULLEN QC

1	On 18 March 2002, sitting with Mr J R Rivers, I heard a preliminary appeal from Mr Mayne against the decision of an Employment Tribunal sitting in Ashford, Mr G W Davis Chairman, which was sent to the parties on 5 October 2001, with Extended Reasons sent on 7 November 2001.

2	The basis of the decision of that Employment Tribunal is set out in paragraphs 3-8 of the judgment I gave on behalf of the EAT on the last occasion.  It was decided that this case should go forward to a full hearing and that the Notice of Appeal should be amended with the assistance of Mr Galbraith-Marten, appearing under the ELAAS Scheme for Mr Mayne, at the last hearing.  As before, we are grateful to him for his assistance of Mr Mayne in doing the written work in this case.

3	Mr Mayne appears before us on his own.  The Respondents have failed to appear or to comply with any Directions.

4	The basis of the Applicant’s claim is a failure by the Respondents properly to calculate sums due to him following his termination of employment by the Respondents.  For the reasons I gave on behalf of the EAT last time, we consider that there was a reasonable prospect of success in each of these claims.  Having now looked at this matter this time as a Tribunal of three and listening to Mr Mayne and paying attention to his written Skeleton Argument we hold that the appeal is well-founded and we will allow the appeal.

5	The earlier judgment should be read as part of this judgment.  The Applicant’s claim was that he was paid a shortfall in his notice pay (see paragraph 12 of the Reasons of the Tribunal).  The Tribunal referred to a gross sum of £1,096.14 received by the Applicant but the correct calculation should have been based upon a net sum received of £1,751.  In our judgment the Tribunal erred in that it ought to have found that a net sum of £819.16 had been received, leaving a balance due to the Applicant of £931.39.

6	The second aspect of the claim concerns the offsetting of a sum of £720 which was paid to him by way of a redundancy payment.  By section 27 (1) of the Employment Rights Act 1996 this, together with section 27 (2) affects the assessment of sums due and expressly excludes such a payment.

7	In our judgment the Tribunal was wrong to take into account the payment of £720 as a set-off, being an overpayment of wages in accordance with section 14 of the Act.  The net effect of this is that a further sum of £720 should be included in the monies due to the Applicant.  It is not necessary, therefore, for us to deal with an offset in respect of damages but, if it were, then Raspin v United News Shops [1999] IRLR 9, EAT sets out the principles and the Applicant would reach the same conclusion.

8	Thirdly, the Applicant contended that the Tribunal made an error of law or acted perversely in failing to have regard to the evidence of the Respondents themselves when determining the appropriate daily rate.  The daily rate is relevant for the calculation of holiday pay.  By that evidence the Tribunal should have found that the daily rate of pay to the Applicant was £109.61 gross.  The effect of that is that the daily rate of £87.55 net would have been achieved and thus the calculations based on a shortfall of holiday pay would be adjusted.

9	The Tribunal found that the Applicant was due, under this head, £989.04 but the correct calculation, as we have indicated, on a proper basis would yield a further £580.07 and we will insert our own view that the sum should be £1,569.11.

10	In those circumstances the appeal is allowed.  The decision of the Employment Tribunal as to the calculations is set aside and is substituted, therefore, the sums that we have set out above, from which it will be seen that the Respondents owe the Applicant a further £931.39 plus £720, plus £580.07.  £2,231.46.