United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R SMOCK (in person)


 


JUDGE PETER CLARK: This appeal comes before us today on an ex-parte preliminary hearing. Mr Smock, the Respondent before the Ashford Industrial Tribunal, appeals against an order made by Mr G W Davis sitting alone at Ashford on 11 February 1998 that the Respondent pay the Applicant, Mr Wilson, the sum of £164.74, being an unlawful deduction from his wages within the meaning of s.13 of the Employment Rights Act 1996.

In extended reasons dated 17 February 1998 the Chairman records that it was the Applicant's case before him that he arranged with Mr Smock that he should take one week's holiday in June for which he would be paid. It was the Applicant's evidence that he took the holiday but was not paid.

At the hearing the Applicant appeared in person and Mr Smock did not appear. The reason for his non-appearance, as he indicated in a letter delivered on 10 February 1998 to the Industrial Tribunal, was that he had contracted influenza and had lost his voice.

He comes before us today with a genuine sense of injustice. He has produced pay records kept by his wife for the purpose of his business, which show that during the month of June 1997 the Applicant, Mr Wilson, was paid for each week in that month a gross sum of £200, less deductions. Furthermore, he has produced to us tachographs which are each relevant to the work done by Mr Wilson as a coach driver during the course of that month. He therefore submits to us that Mr Wilson perjured himself when he told the Chairman in the absence of the Respondent that he had taken a week's holiday in June for which it was agreed he would be paid and he was not paid.

At this ex-parte hearing we are quite unable to judge the truth of the matter and, of course, we are not a tribunal of fact. However, we bear in mind the principles upon which this Appeal Tribunal will admit evidence which was not before the Industrial Tribunal. The three-stage test laid down by Popplewell J in Wileman v Minelec Engineering Ltd [1988] ICR 318 provides that the Applicant who seeks to introduce new evidence must show (1) that the evidence could not have been obtained with reasonable diligence for use of the Tribunal, (2) that not only must it be relevant but that it would probably have an important influence on the result of the case, even though it need not be decisive and (3) that it is apparently credible, though it need not be incontrovertible.

We can see that the situation may arise where Mr Smock is able to argue successfully that although he had the material in his possession before the hearing before the Ashford Industrial Tribunal, he did not appreciate its relevance in view of the fact that the originating application does not allege that the week's holiday claimed took place in June. Further, the evidence, if correct, plainly would have had an important influence on the result of the case and, at present, it is apparently credible. In these circumstances, we think the appropriate course is to adjourn this preliminary hearing with the following directions:

(1) That within 14 days of today's date the Appellant, Mr Smock, do swear and file an affidavit setting out his contentions in this appeal and exhibiting all relevant documents;

(2) That the Respondent to the appeal, Mr Wilson, do file an affidavit in reply within 21 days of the service on him of the affidavit sworn by Mr Smock;

(3) That meanwhile the Chairman, Mr Davis, be asked to provide his notes of the evidence taken by him at the hearing on 11 February 1998.

When these three steps have been taken, papers are to be referred back to me for further directions as to the conduct of this appeal.