Janstorp International (U.K.) Ltd v Allen
| Jurisdiction | UK Non-devolved |
| Date | 1990 |
| Year | 1990 |
| Court | Employment Appeal Tribunal |
Employment - Wages - Deductions - Payment in lieu of notice - Agreement for payment but amount payable disputed - Whether payment “wages” - Whether sum “properly payable” -
Following her dismissal for redundancy the employee received a payment in lieu of notice calculated according to her basic salary only and excluding consideration of earnings under the bonus scheme and other allowances. On her complaint to an industrial tribunal pursuant to section 5(1) of the Wages Act 1986 that the employers had made an unauthorised deduction from her wages within the meaning of section 1(1) of the ActF1, the industrial tribunal held that a payment in lieu of notice was “wages” as defined by section 7(1), that the failure to pay her a proper notice payment was a deduction within section 1(1) and that they had jurisdiction to hear her claim.
On the employers' appeal on the grounds that a payment in lieu of notice was not wages and that the employee's claim was for unliquidated damages for breach of contract rather than for an ascertainable sum properly payable within the meaning of section 8(3): —
Held, dismissing the appeal, (1) that the definition of wages in section 7(1) of the Act of 1986 was in very wide terms and included matters specifically enumerated in paragraphs (a) to (f) without necessarily excluding matters not mentioned therein; that payments in lieu of notice unlike compensation for loss of office were not specifically excluded by section 7(2) and were therefore to be taken as included in the definition of wages in section 7(1) and the industrial tribunal's decision on that issue was correct (post, pp. 784H–785F).
(2) That the employee's claim was for a liquidated or ascertained sum properly payable by the employers within the meaning of section 8(3) since there was an undisputed agreement for a payment in lieu of notice to be calculated either according to her basic wage only or so as to take account of the bonus scheme and other allowances (post, p. 786G–H).
The following cases are referred to in the judgment:
Alsop v. Star Vehicle Contracts Ltd. [
Barlow v. Whittle (trading as Micro Management) [
Delaney v. Staples (trading as De Montfort Recruitment) [
Greg May (Carpet Fitters & Contractors) Ltd. v. Dring [
Jackson v. Foster Wheeler (London) Ltd. [
Kournavous v. J. R. Masterton & Sons (Demolition) Ltd. [
Rickard v. P. B. Glass Supplies Ltd. [
No additional cases were cited in argument.
Appeal from an industrial tribunal sitting at Liverpool.
By an originating application the employee, Mrs. A. Allen, made a complaint that her employers, Janstorp International (U.K.) Ltd., had made an unauthorised deduction from her wages contrary to section 1(1) of the Wages Act 1986. By a decision sent to the parties on 27 January 1989 the industrial tribunal held that they had jurisdiction to hear her claim.
On 10 February 1989 the employers appealed on the issues, inter alia, whether a payment in lieu of notice was payable to an employee by the employers in connection with the employment within the meaning of section 7 of the Wages Act 1986 and whether the payment in lieu of notice was a fixed or liquidated sum so as to render the amount of wages properly payable to the employee on that occasion capable of ascertainment for the purposes of section 8(3) in the absence of any agreement as to the amount to be paid.
The facts are stated in the judgment.
G. O. Jessop, solicitor, for the employers.
P. N. Hinchliffe for the employee.
30 July. Knox J. handed down the following judgment of the appeal tribunal. The Wages Act 1986 has given rise to widespread differences of opinion both at industrial tribunal and Employment Appeal Tribunal level. The present appeal raises one novel argument and some familiar ones. As regards the latter we are driven to a choice between conflicting decisions of this appeal tribunal and it is to be hoped that the Court of Appeal will soon have an opportunity of resolving those conflicts. All the relevant decisions have been reported since the industrial tribunal heard this matter but it may be doubted, given the conflicts between them, whether the industrial tribunal would have had its task significantly lightened by having them before it. It is equally to be hoped that the provisions of section 131 of the
The industrial tribunal, sitting at Liverpool on 22 December 1988, held unanimously, in a decision sent to the parties on 27 January 1989, that (i) a payment in lieu of notice, on termination of employment, was “wages” for the purposes of the Wages Act 1986; (ii) the failure to pay a proper (or any) notice payments was a “deduction” for the purposes of the Act and (iii) accordingly it had jurisdiction to consider the applicant's claim.
A question of jurisdiction which is tested as a preliminary point before any findings of fact have been made on any disputed issue can only sensibly be decided on the basis of the applicant's claim and the respondent's answer in order to see what the issues are. Where there is a conflict between the ways in which the two parties identify the issues to be determined a tribunal such as the industrial tribunal, and therefore this appeal tribunal, can only analyse the issues on the basis that the applicant's factual claims may well be upheld. It is inevitably possible that where there is a finding at a preliminary hearing that there is jurisdiction to hear the dispute, the resolution of factual issues when...
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