Wilson v Energy Support Management Pte Ltd

An Employment Tribunal errs in law where its reasons contain an apparent finding on a vital contractual issue that is irreconcilable with its ultimate conclusion. The judgment must be clear and unequivocal.

Where the correct construction of an employment contract and incorporated collective agreement may depend on evidence of the contractual setting and parties’ practice, an appellate tribunal should not determine the issue without the evidence heard below. The proper course may be remission for a complete rehearing before a freshly constituted tribunal.

The claimant, an offshore chef, claimed an unlawful deduction from wages under the Employment Rights Act 1996. His contract incorporated a collective agreement. The dispute was whether, during certified sickness absence, he was entitled both to salary subject to a deduction for missed offshore days under clause 3 and to sick pay under clause 28, or to sick pay under clause 28 alone.

The Employment Tribunal dismissed the claim. Its reasons, however, included a statement apparently accepting that sickness absence attracted only a 1/189 salary deduction, while its later reasoning held that clause 28 alone governed sickness absence. The claimant appealed.

1. Appeal allowed. The Employment Tribunal’s reasons contained an unresolved inconsistency on the central contractual issue. Paragraph 15 appeared to state that an employee absent through ill health remained entitled to salary, reduced by 1/189 for each missed day. The remainder of the reasons, however, held that sickness absence was governed only by clause 28 and dismissed the claim.

2. That inconsistency could not properly be treated as a recital of submissions, given its position and language under the heading “Conclusion”. Nor could it be treated as a conclusive finding for the claimant, because that would be inconsistent with the remainder of the decision. As it concerned a vital matter, the resulting lack of a clear and unequivocal judgment was an error of law.

3. The Employment Appeal Tribunal could not itself construe and determine the claim on the existing findings. The construction issue might require consideration of the evidence of the witnesses, including evidence about the context and operation of the incorporated collective agreement. The Employment Judge had heard that evidence but had not recorded it sufficiently for the Appeal Tribunal to make the necessary findings.

4. The case was remitted for a complete rehearing before a freshly constituted Employment Tribunal. The Appeal Tribunal made no determination of the proper construction of clauses 3 and 28, nor of the issue concerning rolled-up holiday pay.

• Employment Appeal Tribunal: allowed the claimant’s appeal and remitted the unlawful-deduction claim for a complete rehearing before a freshly constituted Employment Tribunal.
• Employment Tribunal, Aberdeen: Employment Judge Hosie, sitting alone, dismissed the claim. The decision was copied to the parties on 22 May 2013.