United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NO ATTENDANCE OR REPRESENTATION ON BEHALF OF THE APPELLANTS


 


JUDGE PETER CLARK: This is an appeal by Retail Relief Services Ltd against a decision of the Nottingham Industrial Tribunal, Chairman, Mr D R Sneath sitting alone on 20th August 1996, that it had made an unlawful deduction of £492.86 from the wages of the applicant before the Industrial Tribunal, Mr R P Weston. Extended reasons for that decision are dated 12th September 1996.

The facts can be shortly stated. The applicant and his wife were employed as Relief Managers by the appellant. They worked in a shop known as Bradshaw News in Nottingham. They so worked between 19th October 1995 and 4th April 1996.

They were treated as self-employed. Each week the applicant produced an invoice and received a cheque for £300 against that invoice.

That procedure continued until 2nd April 1996 when the appellants sent the applicant a cheque which was subsequently countermanded. That was in respect of the period 24th to 30th March 1996. In addition, the applicant and his wife were not paid for the period between 31st March and 4th April 1996 in respect of which a sum of £192.86 was owing.

The Chairman found that the applicant and his wife were covered by the then Wages Act in that they were engaged under a contract for services to which s.8(2)(c) of the Wages Act 1986, (now s.230(3)(b) of the Employment Rights Act 1996) applied.

The appellant did not appear before the Industrial Tribunal, nor did it enter a Notice of Appearance. Instead, Mr Barnard-Smale, the Chairman of the appellant, wrote a letter to the Industrial Tribunal on 19th August 1996 in which he said that he wanted the applicant and his wife to answer several questions. Should they not wish to do so, face to face, then he said he would have to go to Court to get the answers. The questions he wished to ask were in relation to alleged stock losses amounting to some £1,500.

This is a preliminary hearing held to determine whether or not the Notice of Appeal raises any arguable point of law. The appellants have indicated by fax dated 25th March 1997 that they will not be attending this hearing. We have therefore proceeded to consider the appeal on the papers.

The Notice of Appeal raises two potential grounds. The first is that the applicant and his wife were contractors, not wage earners. By that we understand it to be the case of the appellants that they were not employees. As we have indicated earlier the Chairman dealt with that point, he considered the definition under s.8(2)(c) of the Wages Act and concluded that the applicant and his wife fell within that definition. In our judgment that is a correct statement of the law and accordingly the first ground of appeal fails.

The second ground of appeal is put in this way:

"Mr and Mrs Weston should be instructed to contact RRS to explain shortfall of some £1500=00."

The Industrial Tribunal is not a conciliation service. The correct course for the appellant to take was to counterclaim in the Industrial Tribunal proceedings for damages in respect of the alleged shortage, and to attend the proceedings to pursue that counterclaim by way of evidence and cross-examination of the applicant and/or his wife. It chose not to do so. It is now too late.

In all the circumstances this appeal discloses no arguable point of law and is dismissed.