United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T SADIQ (of Counsel) Messrs Cobbetts Solicitors Ship Canal House King Street Manchester M2 4WB


 


JUDGE PETER CLARK: In 1997, the Appellants, Mr and Mrs Doheny purchased the Church Inn Pub/Restaurant, on the understanding that the Respondents, Mr and Mrs Araya, whom they had known for many years would run the business. Mr Araya was to be the manager and a 50-50 partner in the business. It was agreed that Mr Araya would invest £10,000 in the business which would be returned to him on termination of the arrangement. It was further agreed that Mr Araya would take 50% of the profits once the business went into profit. Meantime Mr and Mrs Araya would each draw £150 per week net. They were to live on the premises rent-free. Pursuant to the agreement, Mr Araya paid Mr Doheny the sum of £10,000 which was put into a special investment account.

The Respondents began working at the Church Inn on 24 July 1997. Both were, it was common ground, employees of the Appellants.

During the employment both Respondents worked very long hours, took no holidays and did the bulk of the work in the restaurant to avoid staff overheads which would reduce potential profits.

In May 1998 the Respondents gave notice of termination and left in June 1998.

The issue before the Employment Tribunal Chairman, Mrs C Porter, sitting alone at Manchester on 16 September 1998, was this. The Respondents contended that before leaving the employment, an agreement was reached between Mr Doheny and Mr Araya whereby the Respondents would receive back the £10,000 invested, plus a further £10,000 representing Mr Araya's share of the profits, overtime worked, his equipment which was to remain on the premises and outstanding holiday pay.

The Appellants gave a different version. It was their case that repayment of the single sum of £10,000 represented £2,000 payment for extra hours worked together with the Respondents' additional claims, and £8,000 being the balance of the original investment less £2,000 already paid to the Respondents.

The Chairman preferred the Respondents account. In particular she found that the Respondents did not receive a repayment of £2,000 from the capital sum invested, purportedly evidenced by an entry in the weekly takings record for the week commencing 25 May 1998 and in the purchasing account.

Accordingly, she awarded Mr Araya the sum of £10,000 due and owing on the termination of his contract of employment.

Against that decision the Appellants appeal. The thrust of the submission made by Mr Sadiq on their behalf, is that the Chairman failed to consider or investigate or make any findings of fact upon what he describes as these fundamental issues. How the sum of £10,000 finally awarded was arrived at, in particular what interest was due on the loan, what amount was claimed by the Respondents by way of profit share, what amount was claimed for the Arayas' wages and what was the value of the equipment left behind following termination of the Respondents' employment.

That, he submits represents an error of law. We are quite unable to accept that proposition. The issue before the Chairman was as we have stated it. The Respondents did not condescend to particulars as to how the sum of £10,000 allegedly agreed with Mr Doheny was broken down. Their case was that that global sum was agreed between the parties as representing the various outstanding claims. The issue was purely one of fact for the Chairman. Did she accept that case or did she accept the case advanced by the Appellants. She preferred the Respondents case for reasons which are fully set out in paragraphs 5.4 and 5.5 of her Extended Reasons promulgated on 12 November 1998.

In our judgment there is no arguable point of law raised by this appeal and accordingly it will be dismissed.