United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DAMIEN BROWN (Of Counsel) Messrs Freethcartwright Solicitors Willoughby House 20 Low Pavement Nottingham NG1 7EA


 


JUDGE WILKIE

1. This is an appeal by Marpletime Limited against a decision of the Employment Tribunal, sitting at Leeds on 9^th and 10^th April this year, by which the Employment Tribunal dismissed Marpletime's appeal against an Enforcement Notice issued by an Enforcement Officer, being an Officer of the Inland Revenue, who are the Respondent to this appeal.
2. The points taken by Mr Brown on the appeal are twofold. The first concerns the characterisation of evidence of the Appellants on the hours worked, or required to be worked, in order to manage and run this particular public house, as evidence of "notional hours" perverse or erroneous.
3. We are clear that there is nothing in this point. It is perfectly clear from subparagraph (n) of paragraph 4 of the decision that what the Tribunal meant by "notional hours" was that the evidence tendered was not evidence of the hours actually worked by the workers in question, Mr and Mrs Thynne, but was, what the witnesses were saying, respectively, about the theoretical number of hours required to run this pub and the number of hours that the replacement manager actually needed to run the pub. They were, in that sense, "notional hours" and not the hours which Mr and Mrs Thynne actually worked during their occupancy of the pub. There is, in our judgment, no seriously arguable case that the Tribunal erred in thus describing that evidence.
4. The second point raised by Mr Brown is this. The appeal by Marpletime Limited was against an Enforcement Notice. The question which the Employment Tribunal has to ask itself under Section 19(6) is whether the facts are such that an Officer, who was aware of them, would have had no reason to serve any Enforcement Notice on the Appellant. Unless that is established then the Tribunal has to dismiss the appeal. Mr Brown's argument is that this necessarily involves the Employment Tribunal making findings of fact on the evidence available to it and, in the light of those finding of fact, consider whether the Enforcement Officer would have had any reason to serve an Enforcement Notice. Mr Brown's contention is that the Employment Tribunal is not exercising an Appellate jurisdiction whereby they would consider the decision of the Enforcement Officer on the basis of the facts known to him on the evidence then available to him.
5. What Mr Brown says is that the Tribunal erred in that it appears to have adopted such an appellate approach by considering what were the facts available to the Enforcement Officer, rather than making its own independent findings of fact and then considering whether the Enforcement Notice could have been reasonably issued in the light of those facts. In so doing, he focuses on the concluding words of subparagraph (n) which read as follows

" again, as this is an appeal the Tribunal if left in the position of deciding what evidence the Enforcement Officer was faced with and the only evidence upon which she could rely as to the hours worked by Mr and Mrs Thynne was the hours which they said they had worked as set out in the correspondence to the Enforcement Officer."

6. We agree with Mr Brown that on the face of it there is an arguable case that the Employment Tribunal, in this respect, did err by asking itself the wrong question. Therefore, this is a point fit to go forward for a full hearing. We, therefore, give leave for this matter to proceed to a full hearing on this point only. We think it is to be listed as a category C case, for an estimate of one hour.