United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 602_95_0811

Appeal No. EAT/602/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 November 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS J W COLLERSON

MRS P TURNER OBE

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TRAVELIN MAN SOUTH WEST LTD          APPELLANTS

MR R J BILLING          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY OR

REPRESENTATION ON

BEHALF OF THE APPELLANTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the decision of the Industrial Tribunal, the Chairman sitting alone, at Plymouth on 3 November 1994.

The dispute before the Chairman was whether the Respondent, Travelin Man South West Ltd, had made unlawful deductions from wages due to the Applicant, Mr Russell Billing. The Chairman decided that Mr Billing was entitled to wages amounting to £300 from Travelin Man South West Ltd and ordered that company to pay such sum to Mr Billing. The company appealed against that order by Notice of Appeal dated 20 November 1994.

The purpose of today's hearing is to decide whether the appeal raises an arguable point of law. If it does, the case will be directed to proceed to a full hearing. If it does not, then the case will be dismissed today.

As to representation, nobody has attended on behalf of or from the Appellants. We have therefore decided to deal with the case on the basis of the decision and the arguments in the Notice of Appeal.

The decision sets out clearly the findings of fact and the reasons why the Chairman made the order for payment. The claim by Mr Billing was that he was not paid for a period of work for the company between 26 June and 10 July 1994. As to what happened in that period and the basis on which the work was done, there was a complete conflict of evidence about the agreement reached between the company and Mr Billing.

The Chairman set out the dispute. Mr Billing's case was that he had applied for employment as a milk rounds person. For a fortnight he worked with a Mr Appleton being shown around. He spent some time becoming familiar with the rounds.

The only issue between the parties was whether Mr Billing was entitled to be paid for what he did in that period. Mr Appleton, the Managing Director, said he made it clear at the initial interview that there would not be any pay for whatever time it took for Mr Billing to be acquainted with the round. He said that was normally two to three weeks. It was hard work and he made it a condition that there would be no payment in the training period. In his experience, a new employee would leave after the training period and Mr Appleton then would then have lost the value of his work during the period of showing him the round.

Mr Billing disputed this. The Tribunal Chairman said he found Mr Billing's evidence reasonably convincing. He said he struck him as a truthful person. He also observed that it was inherently unlikely that there would be no pay during a training period.

The Chairman referred to various other matters relevant to resolving the conflict of fact, including a reference on the Job Centre note. He referred to the evidence of Mr Appleton, who he said he found less convincing, though he was supported by a witness, Mr Midlane, who was working for him. There were also some letters in evidence.

The Chairman accepted Mr Appleton's evidence that there was a general practice in his firm not to pay trainees. The question however was a different one. That was whether that had been made clear to Mr Billing at the interview. He found Mr Appleton's evidence on that less convincing.

His conclusion was that Mr Billing's evidence was to be preferred. The employer had not discharged what would be a heavy burden on him to explain clearly and obtain very firm agreement from an employee that there would be no pay for work done in a training period. It was certainly not agreed that for two or three weeks there would be no payment for work done by Mr Billing.

The Chairman then had to deal with the question of the amount due. He accepted Mr Billing's evidence as to the amount. He had worked for 10 shifts at £30 a shift. He gave judgment for £300 to be paid to Mr Billing.

As appears from that decision, the main task of the Tribunal Chairman was to resolve the conflict of fact. There is no way in which we can interfere with the decision so far as it consists of findings of fact. The crucial question is whether there is any arguable error of law.

The Notice of Appeal served by Mr Appleton makes a number of points. He says that he has two reasons for his appeal. First, that delivery of fresh milk involves his employees working long hours through the night, and at the latter end of the week some day work is required as well. This meant that he thought it was unnecessary to ask all of them to come to the hearing. He took one and took letters from the other two. He observed that written words carried little weight in a Tribunal and he would like a review to enable people, who had sent him written testimonials, to appear and give evidence verbally under oath.

Secondly, he said (and this is a more legal point) that Mr Billing was only learning how to do the job. They were assessing his suitability. They did not think that his employment ever legally commenced. Mr Appleton argues that that was confirmed by the fact that he had never signed a contract. All people who worked for him now or had done so in the past, would have signed a contract. He submits that there is a legal error in the decision.

Mr Appleton has sent a further document dated 1 July 1995, which asserts that it is his firm's policy not to pay roundsmen during their training period. The reasons he has for that policy are first, that the time is used to watch the prospective employee and judge his suitability for the job and, secondly, that the prospective employee uses this time to decide whether he or she is prepared to put in the commitment required.

It was made clear to Mr Billing that there would not be payment for the training period. His employment never commenced due to his lack of suitability; he did not sign a contract and for these reasons he did not think it fair that his company was being asked to pay two weeks' wages for work that Mr Billing was not capable of and did not do.

We have taken into account all those factors, but we have reached a conclusion that there is not, either in the Notice of Appeal, or in the supplementary letter of argument, any legal point. The position quite simply is that the Chairman decided, as a matter of fact, that Mr Billing was working for the company during the period of training and that it had been agreed, as Mr Billing said in evidence, that he should do that work. He said that it had never been made clear to him by Mr Appleton that he would be doing this work for two or three weeks with no payment at all.

We agree with the Chairman. The fact that it was the firm's general practice not to pay trainees was not the point. The question was, what had been said to and agreed by Mr Billing? Mr Billing's evidence was accepted, both on the question of whether he was to be paid for that period, and as to the amount. Those are decisions of fact.

We have no jurisdiction to interfere with those findings of fact. Mr Appleton's point that no one becomes an employee until a contract is signed is not a correct proposition of law. This case turns solely on what was agreed on the facts of the particular case.

The Chairman has made his decision on those facts. There is no appeal from those. This appeal is dismissed.