BS Eaton Limited v A Hughes

An employee claiming wages for a period in which no work was performed bears the burden of showing that they were ready, willing and able to work. That burden remains with the employee even where readiness or willingness is said to depend on conditions or concerns about returning to work.

An employment tribunal errs in law if it instead requires the employer to prove that the employee was not ready, willing and able. Where that misdirection was central to the decision and the issue depends on unresolved facts, the proper course is remission for determination under the correct burden.

The employer appealed against an Employment Tribunal order of 29 November 2022 which upheld the employee’s unlawful-deductions claim for £4,755.58.

The Tribunal found that the employee had initially been laid off and later suspended. It also found that there was no basis for continued lay-off from 22 June to 30 August 2020. It awarded full pay for that period because it considered that the employer had to establish that the employee was not ready, willing and able to return to work.

The central issue on appeal was whether that allocation of the burden of proof was legally wrong and, if so, whether the error required remission.

1. Appeal allowed and remitted. The Employment Tribunal made an error of law by placing on the employer the burden of proving that the employee was not ready, willing and able to work. The burden rests on an employee who seeks pay despite not having performed work.
2. The principle admits of factual qualifications. An employee may assert readiness and willingness subject to conditions, such as the resolution of health and safety concerns. Those qualifications do not transfer the burden of proof to the employer.
3. The error was material. The Tribunal had expressly decided the issue by reference to the erroneous burden. There was an unresolved factual question whether an employee who withdrew from mediation intended to establish a basis for return to work was ready, willing and able to return during the relevant period.
4. The Appeal Tribunal could not resolve that factual question itself. This was not a case in which the appellate court could substitute its own conclusion. The matter was remitted to the same Tribunal for a short rehearing, confined to whether the employee was ready, willing and able to work under the correct burden. The parties could not reopen the existing findings of fact.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the ready, willing and able issue to the same Employment Tribunal.
• West Midlands Employment Tribunal: by an order and reserved judgment dated 29 November 2022, upheld the employee’s unlawful-deductions claim for £4,755.58.