United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr T Linden (Of Counsel) Instructed by: EEF Broadway House Tothill Street London SW1H 9NQ
For the Respondents	Mr M Radford (In person)


 


JUDGE ALTMAN:

1. This is an application for an order that the Chairman be requested to provide his notes of evidence. The Employment Appeal Tribunal always seeks to restrict such a request to the minimum necessary knowing the very onerous nature of any request to a Chairman to provide notes in the midst of a full sitting schedule. However, it seems to us in this case that it would be of considerable help in relation to one issue.
2. The issue is whether the availability of an enhanced redundancy payment was at the discretion of the employer and given in any case by way enhanced payment, or whether there was, as between these parties, a contractual entitlement to receive it. In the letter of the 5 October 1999, representatives on behalf of the Appellant set out four grounds upon which notes were requested and a copy of that letter should be sent with the request to the Chairman.
3. Paragraph 1 deals with the finding in Paragraph 12(6) of the decision of the Employment Tribunal as to the conversation between Mr Farrell and the Respondent to the Appeal on the 25 September 1997. We would ask the Chairman to transcribe his notes of the evidence relating to that meeting.
4. Secondly, the respondent to the Appeal has told us that there was evidence which related to the practice of the Appellants, for example in making the site-wide arrangement for enhanced payments.
5. Thirdly, he told us that there was some evidence in relation to payments made to Colin Turner and issues as to whether he was or was not in analagous position.
6. Fourthly, we would make a general request to the Chairman to provide copies of any notes that he made relating to the issue of contractual entitlement referred to in Paragraph 12(6) of the decision, including any which relate to the words "obviously understood" on the second line of Page 8 of the decision of the Employment Tribunal.
7. Requests 3 relates to evidence about any express commitment to pay regardless whether suitable alternative employment was declined and 4 relates to any evidence about whether the Appellant was treated less favourably then comparable colleagues. However, neither of those statements forms part of the Appellants case, which relate to the ex gratia nature of the payments. Mr Lynden has suggested that the argument will be made that where there was, for instance, a refusal of other alternative employment, the Respondents may not have made the payment, and that even if they did it would have been non-contractual
8. Without saying more about the issues in the case and the extent to which the first and second issues on the appeal are related, it seems to us that however much on the face of it those requests at this stage appear to be in the nature of fishing enquiries it would be helpful to the Employment Appeal Tribunal which hears this appeal could deal authoritatively with an issue arising from the traditional dilemma as to whether a particular point was or was not taken at first instance.
9. Accordingly we order that the Chairman be requested to provide Notes of Evidence in relation to the issues in the letter of the 5^th October 1999.