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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Beijing Ton Ren Tang (UK) Ltd v Wang [2009] UKEAT 0024_09_1410 (14 October 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0024_09_1410.html Cite as: [2009] UKEAT 24_9_1410, [2009] UKEAT 0024_09_1410 |
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At the Tribunal | |
On 17 July 2009 | |
Before
HIS HONOUR JUDGE PETER CLARK
MRS J M MATTHIAS
MRS L TINSLEY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR JAMES PETTS (of Counsel) Instructed by: Messrs Lu Oliphant Solicitors Premier House 112 Station road Edgware Middlesex HA8 7BJ |
For the Respondent | MS ![]() ![]() ![]() (of ![]() Instructed by: Mary Ward Legal Centre 26-27 Boswell Street London WC11N 3JZ |
SUMMARY
UNFAIR DISMISSAL: Mitigation of loss
PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
CONTRACT OF EMPLOYMENT: Sick pay and holiday pay
Principles to be applied when considering whether the Respondent has shown that the Claimant had failed to mitigate her loss.
Whether a procedural irregularity occurred below in relation to 'agreed' wages figures or whether ET gave sufficient notice of its intention to assess the figures on basis of evidence put before them.
Whether contractual claim for pay in lieu of unused holiday entitlement following termination of the employment offended reg. 35(1)(a) WTR 1998.
Appeal dismissed.
HIS HONOUR JUDGE PETER CLARK
Background
(1) That although the Claimant's salary at termination was 'provisionally stated' by her then representative Mr Wiggins, a solicitor at the Mary Ward Legal Centre, to be £18,000 per annum that was a 'pragmatic' figure and having considered pay documentations in the bundle before them the Employment Tribunal concluded that at the date of termination her net pay was £20,000 per annum, that is £384.61 per week excluding a meal allowance (Reasons, para 15) (the salary issue).
(2) Due to the onset of tuberculosis in mid-June 2008 her employment would not, in any event, have continued beyond that time. As to the 17 week period February – June 2008 the Employment Tribunal rejected a contention by the Respondent that the Claimant had failed to mitigate her loss. They found, at paras. 28 – 32, that although she did not look for alternative work during the relevant period and was fit for work until June 2008, she was shocked by the manner of her dismissal; she was very isolated in the London Chinese Community since arriving in 2001; does not speak English and did not know any parts of the country outside London where some of the similar jobs advertised and relied on by the Respondent were located. Further, she was so impoverished following dismissal that she had to borrow £30 from one of the Respondent's directors to pay for food and her lack of funds in itself would have disabled her from at least some aspects of a potential job search (the mitigation issue).
(3) The Employment Tribunal found as fact (paras. 35-40) that at the time she was recruited in China the Claimant was told by Mr Lo, a director of the Respondent, that she would be entitled to 30 days' holiday per annum and if she did not take her holidays she would be paid in lieu of holidays not taken at the end of her employment (para. 35); there was an oral contract she would be paid for holidays not taken during her employment, such payment to be made at the end of her employment (para. 40).
(4) During the employment she took 4 days' holiday each year, being public holidays when the shop was closed, and on one occasion visited China for 28 days. She had thus foregone a total of 131 and a half days' holiday during the employment.
(5) The Respondent denied that she was entitled to any pay in lieu of holidays. The material submission for our purposes was the proposition that the oral agreement found by the Employment Tribunal was void by virtue of Reg. 35(1)(a) Working Time Regulations 1998 (WTR). At para. 45 the Employment Tribunal misstate the relevant provisions of the Regulations as reg. 39 read with reg. 35(7). We agree with MsIyengar
that those references should read reg. 13(9) and 35(1) respectively.
(6) The Employment Tribunal rejected the Respondent's submission (para. 46) simply on the ground that this was a claim in contract, not under WTR. We agree with Mr Petts that this is not, of itself, an answer to the point raised; his submission requires more detailed analysis to which we shall return (the holiday pay issue).
The Appeal
Mitigation
"37 As was made clear in the judgment of the appeal tribunal the various authorities referred to by the tribunal (see paragraphs 22 and 23 above) and Payzu Ltd v Saunders [1919] 2 KB 581 are apt to establish the following principles which (in a form which I have somewhat recast) were accepted as common ground between the parties. (i) It was the duty of Mr Wilding to act in mitigation of his loss as a reasonable man unaffected by the hope of compensation from BT as his former employer; (ii) the onus was on BT as the wrongdoer to show that Mr Wilding had failed in his duty to mitigate his loss by unreasonably refusing the offer of re-employment; (iii) the test of unreasonableness is an objective one based on the totality of the evidence; (iv) in applying that test, the circumstances in which the offer was made and refused, the attitude of BT, the way in which Mr Wilding had been treated and all the surrounding circumstances should be taken into account; and (v) the court or tribunal deciding the issue must not be too stringent in its expectations of the injured party. l would add under (iv) that the circumstances to be taken into account included the state of mind of Mr Wilding."
And at paragraph 55 Sedley LJ added:
"55. Simon Brown I-J's formulation in Emblem v Ingram Cactus Ltd (unreported) 5 November 1997, although it cites no authority and is addressed to the facts of that case, is a restatement of the principle set our by Lord Macmillan in Banco de Portugal v Waterlow and Sons Ltd (1932.) AC 452, 506:
"The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken."
In other words, it is not enough for the wrongdoer to show that it would have been reasonable to take the steps he has proposed: he must show that it was unreasonable of the innocent party not to take them. This is a real distinction. It reflects the fact that if there is more than one reasonable response open to the wronged party, the wrongdoer has no right to determine his choice. It is where, and only where, the wrongdoer can show affirmatively that the other party has acted unreasonably in relation to his duty to mitigate that the defence will succeed."
"It is the duty of an employee who has been dismissed to act reasonably and to act as a reasonable man would do if he had no hope of seeking compensation from his previous employer."
(See also Wilding, para. 37(i).
"11. She felt upset and depressed and for that reason did not feel in a suitable mood to search for other work and did not do so, although there would have been at least some vacancies for her type of work in London which she might have obtained had she felt able to do it."
Salary
"(5) I made a comment during the hearing about the quantum of the Claimant's salary. I cannot remember the exact words used but the gist was that I regarded the Claimant's solicitors' figure as too low and the quantum of salary was something which the Tribunal would have to determine among other matters."
"Claimant: Wonder whether quantum agreed with Respondent …?
Employment Judge: Will grant judgment outside any agreements, if [you] settle it, if not the Employment Tribunal will award what it wants to award …"
and later
"Employment Judge: Will have to deal with on basis of what claiming unless otherwise persuaded in submissions."
"I recall saying something to the effect that the Tribunal might come to its own view, but am not certain as to the precise words used."
Holiday Pay
"(1) Any provision in an agreement (whether a contract of employment or not) is void insofar as it purports –
(a) to exclude or limit the operation of any provision of these Regulations, save insofar as these Regulations provide for an agreement to have that effect."
"1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.
The provisions of Article 7 are to be found reflected in the following provisions of reg. 13 of the WTR; by reg. 13(1), read with para. 2, this Claimant was entitled to 4 weeks paid annual leave, and by reg. 13(9)
"(9) Leave to which a worker is entitled under this regulation may be taken in instalments, but –
(a) it may only be taken in the leave year in which it is due, and
(b) it may not be replaced by a payment n lieu except where the worker's employment is terminated."
Conclusion