United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr N Booth Of Counsel (ELAAS)


 


JUDGE PETER CLARK:

1. The Appellant, Mr Packer, was employed by the Respondent, Analytical Systems Ltd, as a Sales Support Manager until that employment terminated on 7 October 1998. He found another job and resigned. A dispute arose as to outstanding monies owed to him resulting in his presenting an originating application to the Employment Tribunal on 2 November 1998.
2. In that complaint he claimed 11.5 days pay, made up of 7.5 days untaken holiday and 4 days worked during October 1998. He calculated his gross daily rate of pay at £222.22.
3. The case came before a Chairman, Mr D H Roose, sitting along at Stratford on 1 March 1999. On that occasion the Appellant gave evidence, as did Mr Digby, the Managing Director, on behalf of the Respondent.
4. By a decision with extended reasons dated 10 March 1998 the Chairman found that on balance he preferred the evidence of Mr Packer where a dispute arose. However he also found that in February 1998 the Appellant was absent from work for 10 days following a surgical procedure. The Chairman further found that of those 10 days 5 were properly part of his period of convalescence, but the other 5 should be treated as holiday. In the event he concluded that of the 7.5 days holiday pay claimed 5 days were attributable to the additional time off taken by the Appellant following his surgery, leaving a period outstanding of 2.5 days holiday. In addition the Appellant worked 2.5 days in October for which he had not been paid. That meant that he was only entitled to a total of 5 days pay.
5. In that initial decision the chairman awarded the Appellant 5 days pay at £110 net per day, a total of £550.
6. Following promulgation of the original decision the Appellant applied for a review by letter dated 21 March 1998. He took the following points:

1) He was away from work for only the 5 days recommended by his Doctor, that is from the 2-6 February 1998. He contended that at the hearing he had produced his diary for the two weeks following the surgery which showed that he worked the second week. In addition, he produced his expenses claims submitted to the Respondent for February 1998 which showed entries for the 11, 12 & 13 February 1998. In addition he sought to adduce new evidence on review, namely a note from a customer dated 19 March 1998 to the effect that that customer visited the Appellant at the Respondent's London office on the 9 February.

Mr Digby had given evidence before the Chairman to the effect that the Appellant was absent from work throughout the two week period following his operation in early February.

In these circumstances the Appellant contended he was entitled to 10 days pay, 7.5 days holiday pay and 2.5 days work without pay in October 1998, not the 5 days he was awarded.

2) He claimed that his net daily rate of pay was £140, not the £110 per day multiplicand applied by the Chairman.

By a review decision dated 15 April 1999 the Chairman:

a) accepted the Appellant's submission as to the proper multiplicand and issued a certificate of correction, altering the original decision so that the quantum of the award was increased from £550 (5 x £110) to £700 (5 x £140).

b) rejected the application for review as to the multiplier (10 days instead of 5) on the basis that the new evidence, the customers note dated 19 March 1998, could have been adduced in evidence at the original hearing. The chairman made no comment on the Appellant's contention that the other documentary evidence to which he referred in the application for review, namely his diary entries and expenses claim sheet, had been adduced in evidence at the original hearing.

7. A further review application by Mr Packer dated 20 April was also unsuccessful. In this Appeal by notice lodged on 21 April against the corrected substantive decision and the review decisions, Mr Packer's point is simply this; the Chairman, following the original hearing accepted his evidence in preference of that of Mr Digby. It was the Appellant's oral evidence, supported by documents, that he had taken only 5 days off work following surgery; not the 10 days as stated by Mr Digby. It follows that he was entitled to a further 5 days pay. The Chairman having apparently proceeded on the basis that he was away for the 10 days referred to by Mr Digby.
8. We see the force of that contention. Although our powers are limited to correcting errors of law, it is arguably illogical and thus perverse for a Chairman to prefer one party's evidence and then proceed on the basis of the other party's evidence where a dispute existed between them.
9. It seems to us that this appeal is properly directed to the substantive decision as corrected and not the review decision. The Chairman was entitled to find the new evidence of the customer could have been produced at the original hearing. Mr Booth has faintly argued that although that evidence may not fall within Rule 11(1)(d) of the Employment Tribunal Rules of Procedure, nevertheless the interests of justice required a review under Rule 11(1)(e). We do not regard that as an arguable point to go forward to a full hearing. Accordingly we shall allow the appeal against the corrected substantive decision only to proceed to a full hearing. It will be listed for 1 ½ hours, Category C. We direct that the Chairman be asked to provide his notes of both the oral and documentary evidence which was before him at the hearing held on 1 March. In addition the parties will exchange skeleton arguments no less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton argument should be lodged with this tribunal at the same time.