United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 643_95_1511

Appeal No. EAT/643/95

EAT/794/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15th November 1995

HIS HONOUR JUDGE H J BYRT Q.C.

MR J R CROSBY

MR P DAWSON OBE

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SYLK OF MACCLESFIELD          APPELLANTS

MR J M WALLBANK          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR C BAYLISS

(of Counsel)

Messrs Wallace-Jones

Solicitors

108 Beaufort Street

London

SW3 6BU


 


JUDGE BYRT Q.C.: This is an appeal against the decision of the Manchester Industrial Tribunal dated 30th March 1995. They had proceeded with the hearing of a case, notwithstanding the fact that the respondents were unrepresented and notwithstanding the fact that that morning before the commencement of the proceedings the Tribunal had been faxed a letter of request for an adjournment on the score that the respondent's Counsel who was to represent them was unable to do so by reason of sudden and unexpected ill-health.

Further there is an appeal also against the decision of the same Tribunal to review its decision, that refusal being given on 23rd May 1995, when the respondents once more applied for a review on the grounds that they had not been represented at the earlier hearing.

The Tribunal, in giving its decision, made a number of points, two of which we think to be of some considerable importance. One is that the only argument between the applicant and the respondent was as to the amount of the bonus the applicant was entitled to as a result of his employment by the respondents. They took it as accepted that he was entitled to a bonus and that this had been accepted by the respondents. In fact this turns out not to be the case from what Mr Bayliss has told us today. The respondents would wish to argue a point of law as to the applicant's entitlement to a bonus for the month of September 1994, because he did not see the month out in the respondent's employment. So here is a point of law to be argued.

Secondly, the Tribunal was probably influenced by the fact that, in their view, the respondents had not complied with an Order of the Court made in February of the same year, to produce the management accounts for the company for the months of August and September 1994. The respondents had produced the account for August, but not those for September 1994. And in consequence when the Tribunal came to consider the amount of bonus they had to proceed on the basis of an estimated nett profit of the company. That is a point which strikes us to be of considerable importance, and a good reason for the Tribunal to consider refusing an adjournment.

However, we are of the view, that it is a draconian measure to refuse a party an application for an adjournment when their chosen legal representative, in this case Mr Bayliss, is unable to attend the hearing through no fault of his. We think there there is at least one point of law to be argued and would have been argued before the Tribunal on 30th March 1995, if Mr Bayliss had attended. We think it right that the appellant should have the opportunity to argue this and any other points they deem appropriate and in order to afford them that opportunity we think it right that this matter should be allowed to proceed to a full hearing.

That being the case, it is unnecessary for us to make a determination of the points relevant to the appeal against the Tribunal's decision refusing to review. Accordingly, I think this is all I need to say at this stage.

There is one further point however, which we would wish to stress in advance of the hearing. The Tribunal was at a disadvantage when it came to assessing what they considered to be the applicant's entitlements to a bonus for the month of September 1994. Just in case there might be any doubt about the matter, we would direct that at the hearing of the appeal the respondents should bring with them any documentation which is relevant to the calculation of a bonus for that month. Mr Bayliss has told us that at the hearing on 30th March 1995, the management accounts for September were not available. Doubtless by now, they will be available, and although we would not wish to pre-empt the Tribunal's decision about the admissibility of those management accounts if they are produced, it is right and proper if they are now available that the respondents should have them at the full hearing of the appeal, and that the applicant should have had copies of them well in advance of that hearing so that he is aware of what is in them.