Irving v Thwaite Holme Kitchens

MR JUSTICE TUCKER: This is an appeal by the employee, Mr A.W. Irving, against the decision of a majority of the members of an Industrial Tribunal held at Carlisle on 14�July 1992, that the Appellant was not dismissed.

The appeal has been brought on questions of law. The Appellant, Mr�Irving has been represented before us by counsel, Mr Grundy. The Respondent, Thwaite Holme Kitchens have not been represented before us by counsel or solicitors, but their partners have attended the hearing and one of them, Mr Stephen Postlethwaite, has addressed us.

As will be clear, the complaint by the Appellant, as set out in his IT1, the Originating Application, was that he had been dismissed by his employers. That was coupled with another complaint which had been made by him claiming that wages had been wrongly deducted. Those complaints were consolidated and were heard together before the Tribunal. The Tribunal reached a unanimous decision that the Applicant's complaint under Section�5 of the Wages Act 1986 was well founded, but by a majority, they decided that the Applicant had not been dismissed.

In addressing us, Mr Postlethwaite explained that these restrictions as to bonuses and as will transpire as to wages also, were not directed at the Appellant individually, they applied to everyone in the workforce and to the partners themselves as well. No doubt it arose as a result of the recessionary situation.

It is submitted to us, and we accept as being correct, that there was no question of waiver by the Appellant of these breaches of his Contract of Employment. There was a contractual entitlement to be paid bonuses and to be paid an increase in wage each year. The failure to pay those sums therefore amounted as we agree, to continuing breaches of the Contract of Employment.