United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DAVID MENDES DA COSTA (Instructed by) Mr A Green Messrs Eatons The Old Library 34 Darly Street Bradford West Yorkshire BD1 3LH


 


JUDGE J ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at Leeds on 25 July 2000. It comes to us by way of Preliminary Hearing to determine if there is a ground of appeal properly arguable in full before the Employment Appeal Tribunal.
2. The Employment Tribunal themselves were hearing an appeal from an enforcement notice served on the Appellants by the Respondents under the provisions of the National Minimum Wage Act 1998; indeed there were two such enforcement notices that came for consideration by the Employment Tribunal and the decision of the Tribunal was to substitute two figures, slightly lesser amounts than those certified by the Respondent's Enforcement Officer.
3. The first ground of appeal and the one which forms the major complaint of the Appellant, because it is argued by Mr Da Costa that it in effect prejudiced all that followed, was the alleged perversity in the refusal by the Tribunal to grant an adjournment of the hearing.
4. What is clearly on the face of it an undesirable feature of this case, was that the Respondents delivered to the Appellants their bundle of documents, totalling some 47 pages, on the morning of the hearing. Bearing in mind the identity of the Respondents that was clearly a most unfortunate circumstance.
5. The Appellants were represented by Mr Nawaz, who described himself as a chartered accountant, and he had sought an adjournment on the basis, effectively, of being taken by surprise. The Employment Tribunal considered the application and indeed gave a substantial response and extended reasons for refusing the application, and for proceeding with the hearing.
6. It will be understood of course that the whole nature of minimum wage proceedings imposes upon the employer the burden of establishing the wage which the employer relies on in order to demonstrate compliance with the Act. By the time the matter gets to the Tribunal there will have been investigations and discussions and receipt of an enforcement notice and an appeal from an enforcement notice by the employer who in general circumstances has the advantage over the employee, for it is the employer that has the records of payments, calculations and statutory documents furnished to the Inland Revenue to demonstrate actual payments. So, essentially in a proceeding of this kind, the employer must start off with something of an advantage in having access to the sources of factual material required.
7. In the consideration of the application, the Employment Tribunal looked to the actual facts and they pointed out that it is for the Appellants to establish and present to the Tribunal the facts in relation to the Respondent's employment and they point to the fact that this occurred in the case before them and they said:

"In the words of Mr Nawaz it is primarily a factual issue as to whether (the Respondent) worked 3 days or 5 or 6 days with the Appellants. There was therefore a straight conflict of fact in relation to that aspect for the Tribunal to resolve. The Tribunal in its jurisdiction can be constituted in the form of a Chairman sitting alone. This Tribunal has been specifically constituted in anticipation of resolving that issue of fact as a full Tribunal with members and we are accordingly placed to resolve that issue today."

8. In addition to the fact that everyone effectively was "ready to go", the undesirability of delays referred to, coupled with the fact that, because of the detention of documents by statutory agencies the Appellants could offer no prospect of any particular date for a re-convened hearing. the Employment Tribunal also finally noted that although there was a failure to comply with directions by the Respondent, there was also a failure on the part of the Appellants.
9. Finally, mention was made of a letter from Mr Nawaz in which he sought for a less formal means of dealing with the difficulties. The point was made by the Chairman that the application being made was the opposite of that position.
10. We have considered the various arguments raised before us. It has been suggested that there was too much emphasis on that letter in the reasoning of the decision. It seems to us that the Employment Tribunal were just using that as an illustration of their approach in the course of argument. We can see no undue weight being placed upon that letter by the Employment Tribunal.
11. We note that in the course of argument and in the course of the applications made before the Employment Tribunal, it appears that there was no particular aspect of the factual material that the Appellants were saying they needed to deal with but could not deal with because of the late service. There was no specific prejudice being identified as flowing from the late delivery of these documents.
12. In the affidavit which Mr Nawaz has produced he says that he did not know until the day of the hearing that there would be a challenge to the hours stated on the family credit form and that he had therefore insufficient opportunity to prepare to respond to the allegation. We find that a difficult assertion because what it amounts to effectively is one party saying:

"We came to the Tribunal to assert certain facts and we didn't know till we got there that they were going to be challenged"

This seems to us to be a slightly topsy-turvy approach to the recognised obligation of a party to prove the facts upon which they rely.

13. The Notice of Appeal suggests not only that it was an incorrect exercise effectively of discretion, so that a hearing proceeded in which justice could not be done, but particular reliance is placed upon article 6 of the schedule to the Human Rights Act 1998 in that the Tribunal failed to consider whether first, to proceed without an adjournment could maintain the need for a fair hearing, secondly failing to give reasons for proceeding notwithstanding that, and thirdly erring in law in proceeding when it is said it would clearly be a breach of the rules of natural justice and contrary to the provisions of the Human Rights Act 1998.
14. Reliance is placed upon the argument that there was not equality of arms; reference is made to the case of Dumbo Bahir v Netherlands [1994] 18 HRLR 213, where the general principal which is referred to is set out as being that 'equality of arms implies that each party must be afforded a reasonable opportunity to present his case … including the evidence and that the circumstances that do not place him under a substantial disadvantage vis-a-vis his opponent.'
15. Mr. Da Costa argues that the Appellants were under a dual disadvantage. The Respondents had legal representation and they had, he would say, effectively taken him by surprise in breach of the rules by producing their bundle of documents on the morning of the hearing.
16. We have to consider whether there is an arguable point of law, that there was a breach of Article 6. Is it arguable that there was not a fair hearing as a result of these matters? It must be borne in mind that the phrase 'equality of arms' is just that. It is not 'exact similarity of arms'. It is not 'the same arms'. There is the need for a balance and proportionality and the Tribunal must be satisfied that there can still be a fair hearing notwithstanding the circumstances presented to them.
17. No two sides ever have exactly the same representation. No two sides have exactly the same circumstances of presentation when they come to a Tribunal and we accept Mr Da Costa's submissions that nowadays the question is not simply whether there is a discretion and whether the Chairman exercised his discretion in a way that no reasonable Chairman could have done. But also, when such an application is made there is an obligation on the Chairman and members to be satisfied that there can be a fair trial. That is not a matter of burden of proof; the responsibility does not rest upon the parties. The Tribunal as a public body has an obligation to be satisfied that there will be a fair trial and that is an obligation which must be met by the Tribunal as well as by anyone else.
18. It is suggested by Mr Da Costa that a number of features should be taken into account. First of all there was representation by Counsel, or Solicitor. We can see no substance in that. This is a case in which the issue was 'what was the employee being paid?' and we can see no better person to be able to explain that to a Tribunal than an employer's accountant who had charge of those very matters to some extent, or at least had the sort of knowledge that was relevant.
19. Secondly, it is complained that Mr Nawaz was not a professional advocate and was therefore at a disadvantage. However, we cannot know how, in a case where there is no specific fact actually mentioned to the Tribunal at the time that causes difficulty, that simply from late delivery of documents, the Employment Tribunal could not and did not in this case analyse carefully the existence of any disadvantage. It clearly appeared to the Tribunal that there was no real disadvantage to the Appellants, bearing in mind the facts that had to be considered.
20. It is then suggested that such a refusal imposes intellectual and emotional difficulties for a lay advocate who has only seen the bulk of the evidence on the day. In our experience Employment Tribunals are constructed and run to assist lay representatives or parties without any representation at all. It is just for the purpose of being able to get to the truth in an informal and fairly summary way that Tribunals do that. We can see no reason why, when someone is told to do their best and get on with the hearing without an adjournment, there should be any intellectual difficulty and we certainly can see no basis for any emotionally based difficulty being argued for.
21. We recognise that an appearance before a Tribunal can be a matter of high tension for any party. It is very often that matters which strike very deep into the feelings and emotions of a party that are being dealt with. We are satisfied that Tribunals, in general, deal with that very feature and we see nothing in this case to see raise any arguable point that this Tribunal departed from that practice.
22. It is then suggested that the perception of a refusal for an application for adjournment did itself give the presentation of a mind having been made up. We can find no reason to find support for that argument. We are bound to say that we can find no logic in it either. Simply because a party wishes to get on with the case and finds in favour of one party as against the other in an Interlocutory application cannot, it seems to us, give any reasonable person appearing before the Tribunal any impression of close-mindedness, otherwise there could never be any Interlocutory hearings or decisions before the main one. For after all, any Interlocutory decision must favour one party against the other and it would, it seems to us, be inappropriate to conclude that therefore the other party would think that there was close-mindedness.
23. It is suggested that once a refusal is made, it would inhibit the preparation of a case as rationally as it might otherwise have been done but that is really, it seems to us, another way of saying the same arguments that have already been presented.
24. Further it is suggested that, in the giving their reasons, too much emphasis was placed on administrative convenience. In the extended reasons for the refusal of the adjournment the Tribunal recorded that it was ready to proceed with the case. However against that, and in some detail, the Tribunal have gone with some care into the investigation of exactly what it was that the hearing was going to deal with so as to be able to assess whether the absence of an opportunity to consider the bundle of documents was going to provide any inhibition to the Appellants.
25. The administrative convenience, as it is so described, was only one of the factors and we see no ground for arguing that too much regard was placed on it. Another way of approaching what is called 'administrative convenience' and, we apprehend, a more appropriate one, is to remember the principle of justice enshrined in the Civil Procedure Regulations that justice includes enabling parties, not only those before the particular Tribunal, to have a fair, just and expeditious hearing. If one party takes up a disproportionate amount of Tribunal time through adjournments this can affect the chance for other parties to get a hearing in a reasonable time. Accordingly, we find no arguable points of law that the refusal of the adjournment was anything other than the proper exercise of discretion.
26. Rule 9 of the Employment Tribunal's constitution and Rules of Procedure Regulations 1993 Paragraph 9 of Schedule 1 provides that the Tribunal:

"…shall …. conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."

And there is nothing on the material before us to provide any arguable case for suggesting that that is not exactly what the Tribunal did in this particular case.

27. Other grounds have been raised in argument before us. We have dealt with the question of the alleged bias based on undue emphasis on the letter. In supplemental grounds of appeal a further ground of bias was alleged in that the cross-examination by Mr Nawaz of the Respondent was curtailed. That is now a general feature of many cases, not just in Tribunals but in courts. It is necessary from time to time for Tribunals to guide cross-examination into relevant areas and to concentrate on the issues they have to deal with and we can see no basis for saying that cross-examination should not be curtailed where appropriate. It seems to us it is another example of the general discretion in paragraph 9 which we have just quoted.
28. Finally it is alleged that the Employment Tribunal made a mistake of fact when they made a finding as follows:

"They (the Appellant) paid him (the Respondent) a standard rate of £135 per week regardless of the hours of work which he undertook. The payslips showed gross wages of £135 less deductions."

The Appellant submitted that the Employment Tribunal were in error in that conclusion because they said that the Respondent in cross-examination said he had received £135 after all deductions plus tips.

29. It may be that in the course of cross-examination some such evidence was given. However, we note from the decision of the Tribunal itself at paragraph 7 (a) that they referred to the payslips. They dealt with the findings of fact and they made this following finding:

"Mr Mehmood began working for the Nawaab restaurant on or about 18 March 1998….he received no payslips despite requests, apart from during a period in April and May 1999 when he received a total of 4 payslips. These incidentally did not agree with the sums which he was paid by the Appellants. They paid him a standard rate of £135 per week regardless of the hours of work which he undertook. The payslips show gross wages of £135 less deductions"

30. In paragraph 7 (b) they pointed out that information given by the Appellants in a form in 1999 was in conflict with the payslips which the Respondent received, implying an inconsistency which went no doubt to credit.
31. And then in paragraph 7 (c) they found that the Appellants had produced a letter in which they said under the heading "to whom it may concern" that the Respondent's weekly gross earnings were £135. In those circumstances and bearing in mind that that is evidence that was emanating from the Appellants themselves, it seems to us that there can be no assertion of a mistake of fact. There was plenty of factual material before the Tribunal from which they were entitled to conclude that the gross pay was £135 per week.
32. Having considered all the arguments that have been carefully and fully presented to us we are driven to the conclusion that this appeal raises no ground of law and no arguable points of law and it therefore falls to be dismissed at this preliminary stage.