A & J Menswear (Retail) Ltd v Jacobs

An Employment Appeal Tribunal may interfere with an employment judge’s findings of fact only on a point of law. An employee who remains employed while suspended is entitled to pay unless a clear contractual term permits suspension without pay. Where an employee gives notice in terms referring to contractual notice, the tribunal may infer that the contractual notice period was intended, particularly where the employer knew of that obligation. Pay during the notice period may be awarded where the evidence does not establish that the employee was unwilling or unable to work.

The claimant resigned from employment on 30 July 2010. She stated that she was giving notice, but did not specify the termination date. Before resigning, she had been instructed not to return to work pending a disciplinary investigation. No subsequent instruction requiring her to return was given.

The Employment Tribunal awarded her gross wages for the period from 15 July to 30 August 2010. The employer appealed, challenging the findings that the claimant had been suspended on pay and that she had given one month’s contractual notice. The central issues were whether the tribunal had erred in law in awarding wages for the suspension and notice periods.

1. Appeal dismissed. The Employment Judge had reached permissible conclusions on the material before him.
2. The finding that the claimant had been instructed not to return to work pending investigation was a finding of fact. The EAT could not interfere with it on an appeal limited to points of law. The claimant remained employed during the relevant period.
3. Any suspension was therefore subject to the ordinary entitlement to pay. Suspension without pay required a clear contractual term authorising it. No such term had been produced.
4. Although the resignation letter did not specify a termination date, the Employment Judge was entitled to infer that the claimant’s reference to notice meant the one month’s notice required by her contract after 13 weeks’ service. The employer was aware of that contractual obligation.
5. The EAT was not in a position to find that the claimant had been unwilling to work during August. Her evidence was that she would have worked her notice if asked. The approach in Miles v Wakefield [1987] ICR 368 was therefore not displaced on the evidence.
6. The award of £1,267.50 gross for unpaid wages covering 15 July to 30 August 2010 was upheld.

• Employment Appeal Tribunal: appeal against the Employment Tribunal’s judgment of Employment Judge Griffiths, promulgated on 9 February 2011, dismissed.