United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR RECORDER LANGSTAFF QC: In a decision which was promulgated by the Liverpool Employment Tribunal on 28th March 2000, the Chairman decided that the employer, Mr Sands, trading as Grasshopper Landscaping, had made an unauthorised deduction from the wages of his former employee, Mr McGeehan, of £65.00. He also found that he had failed to pay a accrued holiday pay in breach of contract and awarded £90.00 for that.

1. The central issue, so far as the unauthorised deduction from wages was concerned, was whether or not the employer was entitled to withhold wages. The claim that Mr Sands made to withhold wages was that wages were payable each week for time spent. If a day was not worked, no pay was due.
2. The employee was on day release which involved or should have involved one day's attendance per week at the Knowsley Community College. If he attended the College he was entitled to a day's pay for doing so. If he did not attend there was no pay due.
3. Mr Sands contended before the Employment Tribunal and has repeated with considerable skill and eloquence before us, that he thought that Mr McGeehan had not attended the College on a number of days, accordingly he was entitled to withhold pay which he had otherwise given to Mr McGeehan on the basis that he had in fact attended. He had only discovered towards the very end of the short period of employment that Mr McGeehan had with him, that he had not attended the College.
4. When the matter came before the Employment Tribunal, the Chairman, who sat alone, had before him Mr McGeehan who swore on oath that he had attended every single day that he was required to attend at the College.
5. A letter from the College was also in evidence. That suggested that Mr McGeehan had not so attended. An explanation was given of the letter's failure to record attendances, that was that the lecturer, who took the course which Mr McGeehan said he attended, had not marked him down on the register.
6. The Chairman was in that difficult position, therefore, that Chairmen frequently are, in having to choose between two opposite and conflicting views of what had happened. In such a situation it is very easy for a tribunal to make what eventually turns out to be a wrong decision. However, it is a necessary part of the system in which Chairmen sit effectively as umpires between two cases put before them, that they make a decision as best they can on the material before them. If the material is not as full as one might like that perhaps is life. It is rarely as full as one would like, even after considerable effort. In this case it was very limited indeed, but the Chairman had to make a decision. He chose to prefer the evidence he had heard on oath from Mr McGeehan, and to reject as inaccurate the letter which Mr Sands had from the College.
7. For the appeal, which Mr Sands brings, to succeed he has to show us that the Chairman was wrong in law to prefer one side against another, on the evidence that there was before him.
8. We have considerable sympathy for Mr Sands' position. He was inexperienced in Employment Tribunals. He did not ask for an adjournment so that further evidence might be produced, which he might have done. Perhaps his ignorance of procedures, never having been before a tribunal before, may explain why he did not do so. He felt that he had not had a fair hearing and it is largely his sense of grievance which has brought him to us. The amount of money at stake might not otherwise have justified his coming.
9. We have, as I have said, considerable sympathy with his position, but our difficulty is in finding any error of law by which we can say that the Chairman was necessarily wrong on the evidence that was then before him to prefer that the evidence on oath, as against the material from the letter. It is the prerogative of a Chairman to make decisions such as that. It is perhaps one of the curses of Chairmanship that decisions have frequently been made on what may turn out to be inadequate and insufficient evidence. But the job has to be done. He did it.
10. Having done it, Mr Sands applied for a review because he had had further information from the College. The Chairman's hands were tied by the Rules of Procedure. They provide that fresh evidence, in effect, may be considered only if it arises truly anew after the date of a decision and could not, with reasonable diligence, have been produced beforehand. The material from the College he judged could have been. Again, perhaps the reason that it was not so produced was Mr Sands' lack of familiarity with tribunal procedures and perhaps his own conviction in his own mind that his case was right and Mr McGeehan's was not and that the tribunal would necessarily therefore find in his favour. Accordingly, the Chairman was, in our view, right on the Rules of Procedure as they stood to reject the application by Mr Sands for a review. There was, in effect, nothing that the law allowed him to do at that stage.
11. The result is that a decision has been reached. Mr Sands is unhappy with that decision and no doubt after today will remain unhappy with that decision. It is part of the price that it is necessarily paid for the system of justice which applies that decisions have to be made, but the alternative would be a system of justice in which decisions were constantly being delayed and put back in order to consider further evidence which might possibly affect provisional conclusions. That might be thought equally unjust if not more so; but the decision is not ours as to that, the decision is Parliament's which has produced the system that we have.
12. It follows that we see no error of law upon which Mr Sands could hope to succeed in a full appeal. We therefore have no alternative but to dismiss this appeal by declining permission for it to go forward for a full hearing.