United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


JUDGE PETER CLARK: This is an appeal by the employer, Tara Hotel Co Ltd, against a decision of the Manchester Industrial Tribunal sitting on 10th January 1997, awarding the respondent employee, Mr Harries-Hughes, the sum of £1,340 which it found the appellant had unlawfully deducted from his wages. Extended reasons for that decision are dated 20th January 1997.

We note that before the Industrial Tribunal the employee attended in person; the appellant did not appear, but submitted written representations. Again, at this preliminary hearing, the appellant has not attended but has asked us to take into account a written application to produce documents; a witness statement of Mr Anthony Moeller; and the grounds of appeal set forth in their Notice of Appeal. We have done so, and shall deal with these matters in due course during this judgment.

The facts

We take these from the Industrial Tribunal's reasons, bearing in mind that the tribunal accepted the truth of the oral evidence given by the respondent, the only witness from whom the tribunal heard.

The respondent was employed by the appellant from 23rd December 1995 until 20th September 1996. Following termination of the employment he presented an Originating Application to the Central Office of Industrial Tribunals on 16th October 1996, complaining of "unfair dismissal, wages owed for time worked, P45 requested and not received. Tax and Insurance deducted but not paid."

The tribunal appear to have made no finding on the unfair dismissal complaint in their decision and reasons. We assume that this complaint was withdrawn, the respondent having failed to complete two years continuous employment. At all events, the question of whether or not the respondent was dismissed, and if so, whether the dismissal was fair, is not before us on this appeal.

The grounds upon his complaint succeeded are set out in paragraph 4 of the tribunal's reasons in this way:

"4. The Tribunal awards to the applicant the sum of £1,340 which is calculated as follows:-

(i) The applicant worked on 29 August, 30 August, 2 September, 19 September and 20 September 1996 at the rate of £50 per day (that is £300 per week, the minimum sum paid by the employer) and was not paid. He is thus entitled to £250 for that (subject as below).

(ii) The applicant was entitled to holiday pay at the rate of 1½ days per month and had taken on 1½ days in the 8 months that he had been employed. He is thus entitled to 10½ days at the minimum rate of £50 per day, that is £525.

(iii) The applicant worked on Christmas Day and Boxing Day 1995, New Year's Day, Good Friday and Easter Monday 1996 and was entitled to take days off in lieu, with pay, at a time when the hotel was trading out of season. His employment was terminated prior to his being given the opportunity to take those lieu days and so he is entitled to 5 days at the minimum rate of £50 per day, that is £250.

(iv) In addition, the applicant is entitled to the salary increase withheld from him at the rate of £35 per week. The Tribunal only has jurisdiction under Part II of the Employment Rights Act 1996 over the period of 13 weeks up to the date of presentation of the Originating Application, this this case 16 October, and so we are able only to award him 9 weeks at £35 per week. We award him the gross sum on the basis that he will have to reconcile any contributions with the Inland Revenue and the Department of Social Security and that is 9 weeks at £35 per week, the sum of £315."

The Appeal

The Notice of Appeal raises the following grounds:

(a) that the Industrial Tribunal should not have disregarded the rate of pay shown on the forms P45 and P60 prepared by the appellant, in accepting the respondent's evidence as to the correct rate of pay. It is contended that his rate of pay was reduced to £125 per week from 15th January 1996, from £50 per day (£300 per week). Accordingly the calculations contained in paragraph 4 of the reasons are based on the wrong figures.

(b) It is submitted that under paragraph 4(i) the respondent was compensated for two days, August 29th and 30th when by letter (which we think is a reference to his letter dated 14th October 1996 at page 9 of our bundle) he did not claim to have worked those dates.

(c) The respondent misled the tribunal as to holiday pay entitlement. The appellant had already paid the respondent for the period 3rd to 17th September 1996, and the award under paragraph 4(ii) amounted to double recovery.

(d) The appellant's final submission appears to relate to the circumstances surrounding the termination of the employment; whether or not the respondent was dismissed. It is submitted that by quitting the employment the respondent lost the opportunity to take the paid lieu days compensated for in paragraph 4(iii) of the reasons.

We can deal with each of these grounds of appeal compendiously. Our jurisdiction is confined to correcting errors of law. Questions of fact are for the Industrial Tribunal. Parties who do not attend Industrial Tribunal hearings, but rely simply on written representations unsupported by live evidence, run the risk that their opponent's evidence will be accepted in preference to their written submissions. That is precisely what happened in this case. The respondent's evidence was accepted by the tribunal as true. We cannot interfere with those findings of fact upon which the tribunal's determination was based. Accordingly we have concluded that the Notice of Appeal discloses no arguable point or points of law to go to a full appeal tribunal hearing.

The applications

These were served under cover of a letter from the appellant dated 26th May 1997. The written application is headed "Application to produce documents not submitted at the Industrial Tribunal hearing". Those documents consist of the form P46 prepared by the appellant and submitted to the Inland Revenue; and the witness statement from Mr Moeller, who was employed by the appellant between May and December 1996, first as assistant chef and later as head chef following the respondent's departure.

Again, we think that the appellant has misunderstood the role of the Employment Appeal Tribunal. We were not set up by Parliament to allow unsuccessful litigants before the Industrial Tribunal a second bite of the cherry.

The principles upon which we will exercise our discretion to admit further evidence not adduced before the Industrial Tribunal are helpfully set out by Popplewell J, then President of the Employment Appeal Tribunal, in Wileman v Minilec Engineering Ltd [1988] ICR 318, namely, that new evidence has become available since the conclusion of the Industrial Tribunal hearing and that its existence could not reasonably have been known or foreseen before that hearing; secondly, that the evidence is relevant, probative and likely to have an important influence on the result of the case.

In the absence of argument addressed to us on behalf of the appellant to satisfy the Wileman test, we are unable to see how the new evidence passes the first criterion, even if it were to pass the second. In these circumstances we shall not admit the further evidence.

It follows that there are no grounds for permitting this appeal to proceed and we shall dismiss it as this preliminary hearing stage.