United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANTS


 


JUDGE COLIN SMITH QC: This is an application for leave to proceed to a full hearing of an appeal by the employers, Messrs Tolley and Dale T/A Dragon Security UK, against a decision of an Industrial Tribunal held at Shrewsbury on 29th November 1995, when the Industrial Tribunal by the Chairman sitting alone held that the applicant before them, Mr Batey, had unauthorised deductions made from his wages in the sum of £601 contrary to the Wages Act 1986 and ordered Dragon Security to pay that sum to Mr Batey.

We have considered the application on the basis of written submissions made to us by Mr Dale, the director of Dragon Security. We have of course reminded ourselves that we only have to be satisfied there is an arguable point of law to allow the matter to go forward to a full appeal.

As appears clear from the decision of the Industrial Tribunal most regrettably neither Mr Tolley nor Mr Dale gave evidence or appeared in any way before the tribunal. The only witness who did give evidence on behalf of the employers was a Mr Perry, who, the Chairman held, could give no evidence about the major issues of which Mr Batey complained.

Putting it shortly by reference to the findings of the Industrial Tribunal, Mr Batey had been employed as a Trainee Chief Inspector, and had become a Chief Inspector. It was his evidence that in May 1995 he had agreed with Mr Tolley and Mr Dale that they would pay him for 84 hours at £3 per hour per week, what ever hours he worked provided he worked a minimum of 40 hours per week, i.e., £252 per week, together with a dog handling fee of £20 per week. It was his evidence that from the week commencing 19th June 1995 the employers failed to honour that agreement with the result that at the end of July he was no longer prepared to work. Thus, he claimed that for five weeks from 19th June 1995 he was underpaid by £463. The Chairman having heard his evidence accepted his evidence and awarded him that sum under the Wages Act, the Chairman also awarded him a further sum of £138 in respect of 46 hours which he said he had worked over four Bank holidays for which he said he had not been paid. The Chairman went on carefully to consider his claim for holiday pay and dismissed it.

It is quite clear from the documents which we have all seen, including of course the IT3 and correspondence which we have read from Mr Dale, both addressed to the Industrial Tribunal and to the appeal tribunal, that the employers' account of what had taken place between them and Mr Batey would have been different from the account given by Mr Batey. Amongst various points they would appear to have wished to have made, they would have said that Mr Batey had failed to work a proper rota, failed to complete time sheets, taken time off to which he was not entitled, caused complaints to be made about his conduct by the men on site, failed to give a weeks' notice, and failed to do his job properly in numerous respects. It is clear from a recent letter to the Employment Appeal Tribunal dated 28th January 1997 that it is Mr Dale's case that Mr Batey has given what he describes as inaccurate or false evidence to the tribunal. At one point he says that the contract was that Mr Batey would be paid £180 per week, i.e., 60 hours at £3 per hour plus a £20 dog allowance. According to Mr Dale, Mr Batey covered a particular site himself instead of supervising all the sites and thus his dog allowance was stopped because he was not doing mobile patrol or supervisory duties. His money for such duties was stopped and the reason was explained to Mr Batey. It would have been Mr Dale's contention on behalf of Dragon Security, that Dragon Security were "entitled to suspend Mr Batey's rank structure until he could regain the trust and respect of our other on site officers".

It can be seen from all this and from the Notice of Appeal that what Mr Dale and Dragon Security wish to do now is to try and re-open the whole matter and, in effect, obtain a rehearing of numerous disputed issues between the parties.

However, in our judgment, this is simply not open to Mr Dale and Mr Tolley. They had their opportunity to attend the Industrial Tribunal to give their side of the story and failed to do so, although they knew precisely what Mr Batey was claiming. In those circumstances we have considered the Chairman's decision, and we have reached the conclusion that the Chairman was fully justified on the evidence before him in accepting Mr Batey's evidence and reaching the conclusions that he did. No possible question of law arises on the findings of fact or the conclusions of the Chairman's decision. Indeed it is noteworthy that the Chairman took a balanced view of the matter and in fact dismissed the claim in respect holiday pay. The Employment Appeal Tribunal is a tribunal established only to deal with points of law. Thus, it is not within its jurisdiction to rehear cases in circumstances where one side or the other has failed to turn up at the Industrial Tribunal for no good reason and failed to give its evidence to that tribunal which is the tribunal of fact.

Accordingly for those reasons this application will be dismissed.