At the Tribunal | |
Before
HIS HONOUR JUDGE H J BYRT QC
MISS A MACKIE OBE
MRS T A MARSLAND
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING - EX PARTE
For the Appellant | MS C D'SOUZA (of Counsel) Appearing under the Employment Law Appeal Advice Scheme |
JUDGE BYRT QC: This is a preliminary hearing in relation to an appeal against a decision promulgated 27th August 1998 of an Employment Tribunal Chairman sitting alone at London (South). By her decision, she held that the applicant's claim for breach of contract and damages failed. Mr Harakis, the applicant on that occasion, now appeals.
We have been addressed by Ms D'Souza under the ELAAS scheme on the lines of the Notice of Appeal. We have decided that this matter should go forward to a full hearing.
The Notice of Appeal raises three points. Firstly, is the question of withholding certain documents which it is said were relevant. The two documents concerned were listed in the index of documents provided for the tribunal as 15 and 16, but those two documents had been extracted from the bundle. Having regard to the terms of another document in the bundle, namely document 104, we think it is arguable that document 16 should have been admitted into the bundle. For that reason we think that when this matter is considered by the full tribunal they should consider the relevance of admitting document 16. So far as document 15 is concerned, at present we do not know whether it has any relevance to these proceedings but I shall refer to that in a minute.
The second ground of appeal is that evidence was given by one of the respondent's witnesses in relation to an issue that Mr Harakis did not know to be relevant or in any way outstanding. Accordingly he did not have with him a particular document which would have directly contradicted the evidence of that witness. We have seen that document, a payslip which is included in our bundle at page 19. Once more, we think this is a matter which should be considered by the full hearing of the tribunal, to see whether it might have made a difference to the decision of the tribunal Chairman.
The third point concerned some derogatory remarks made by the respondent's Counsel relating to Mr Harakis's possible demotion. We were told that the remark was untrue. It could be that the tribunal Chairman heard the remark and attached importance to it in deciding the issue of credibility. We think that also ought to be considered by the full hearing of the tribunal.
There are two elements to Mr Harakis's claim. One is for allowances, relating to the use of a pager in the course of his employment. None of the points Ms D'Souza has raised today relates to that part of his claim. Ordinarily we would say therefore that this matter should go forward on only the second limb of Mr Harakis's claim, namely, the allowances due for overtime and meal breaks, and that ground alone. However, now that the point has been made relating to documents 15 and 16, we think that both those documents should be produced in anticipation of the full hearing of the tribunal; that when it hears this matter, the EAT should consider document 15, if it is germane or relates to the first limb of Mr Harakis's case, I am sure that they will give due consideration to it and consider that first limb as well.
In all circumstances, therefore, we give leave for this case to go forward to full hearing.
I would just like to say, as one becomes accustomed to saying, that we are grateful to the contribution of ELAAS on this particular occasion. Ms D'Souza has greatly helped us to understand the intricacies of this case.