Reference:        [2018]TRE41


Date:                7 June 2018


Before:                         Mrs H G Griffin, Chairman






The Claimant’s claim for breach of contract against Mr de Castro is rejected.






1.       By Claim Form admitted by the Tribunal on 21 March 2018, the Claimant (in this case an employer) issued a breach of contract claim on the grounds that its employee, Mr De Castro, failed to give contractual notice to terminate his employment (“Claim”).


2.       On 22 March 2018, the Tribunal sent a copy of the Claim Form to Mr De Castro.  The Tribunal’s letter complied with the provisions of Article 7 of the Employment and Discrimination Tribunal (Procedure) Order 2016 (“Procedure Order”) and notified Mr De Castro of:


a)       how to submit a response;

b)      the time limit for submitting a response, being 11 April 2018; and

c)       the consequences of failing to submit a response within the given time limit.


3.       Mr De Castro did not file a response to the Claims within the limitation period. 


4.       On 13 April 2018, having spoken to the Registrar and been notified that any response would be rejected, Mr Castro sent an email to the Tribunal explaining the delay in submitting the Response Form.  He explained as follows:


During the time I received the documents, I was not thinking straight as I was not sleeping, eating or drinking due to stress and depression.  I was sighed [sic] off work and I didn’t realise the dates.  I would like to ask if the case would be reconsidered.”


5.       On 16 April 2018, Mr Castro submitted a completed Response Form. 


6.       On 19 April 2018, the Tribunal wrote to Mr De Castro rejecting his application for a reconsideration of the decision to reject the Response Form on the basis that the original decision to reject the Response Form under Article 9(1)(c) of the Procedure Order was correct.


7.       Consequently these proceedings became the subject of Article 12 of the Procedure Order.




8.       Article 12 of the Procedure Order sets out the effect of the non-presentation or the late presentation of a response.  Article 12(b) of the Procedure Order provides that:


“The Chairman or a Deputy Chairman must decide whether on the available material (which may include further information which the parties are required to provide), a determination can properly be made of the claim, or part of it and if so the Chairman or Deputy Chairman must issue a judgment accordingly; otherwise, a hearing must be fixed before a single member tribunal.” [emphasis added].


9.       I take from Article 12(b) that if I believe there to be sufficient material available to make a proper determination in the case, I must do so.   


10.   Having sought additional information from the parties, I am satisfied that there is sufficient material to enable me to make a proper determination in the case.  I am therefore obliged to do so without calling a hearing.



11.   Mr De Castro’s contract of employment (“Contract”) provided that he was required to give two months’ notice to terminate his employment after five years’ service.  I was somewhat surprised to see that the notice provisions were markedly more onerous for Mr De Castro than for the Claimant.  Indeed some of the notice provisions for the employer did not comply with the statutory minimum notice periods as provided under Article 56 EJL 2003;


12.   Both parties confirmed that wages were paid to Mr De Castro fortnightly in arrears and that the last salary payment was made on Friday 12 January 2018.  Mr De Castro failed to attend work on Monday 15 January 2018. 


13.   In Polar Auto Refurbishment Centre Limited v Mr Dumitru Lulian llie JEDT103/16, the Tribunal set out the circumstances in which an employer is able to successfully claim damages for an employee’s failure to work their notice.


14.   In Polar Auto, the Tribunal quoted with approval from the Employment Appeal Tribunal case of Li v First Marine Solutions Ltd UKEAT/0045/13, in which Langstaff P commented that if an employee does not work out a portion of the notice required, the wages for that period will be deducted from what would otherwise be payable for that notice period.  In the First Marine Solutions case, the parties did not argue this point.  However Langstaff P stated obiter that had they done so, the £5,000 for time unworked by that employee would only have been deducted from the £5,000 which the employee would normally have earned had she worked the notice period.    


15.   When one applies these comments to this case, the result is that the Claimant was entitled to deduct £2,860 (ie. Mr De Castro’s eight week notice pay) from the amount which Mr De Castro would have earned had he worked his notice period (ie. £2,860). This reflects the normal employment expectation of “no work, no pay”.  


16.   As the Claimant paid wages in arrears, Mr De Castro only received payment for hours worked up to and including 12 January 2018.  He did not receive any payment in advance for the period from 15 January 2018.  As the Claimant made no payments to Mr De Castro for the period after 12 January 2018, the Claimant suffered no losses in this regard.


17.   The Claimant’s claim for damages for breach of contract therefore fails.




Mrs H G Griffin, Chairman                                                                       7 June 2018






Page Last Updated: 07 Jun 2018