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At the Tribunal | |
Before
MR RECORDER UNDERHILL QC
MRS M T PROSSER
MR B M WARMAN
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | MR J LADDIE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme |
MR RECORDER UNDERHILL QC:
(1) Whether the employee was in the period in question a worker within the meaning of the 1996 Act. The Chairman held that he was.
(2) Whether his employer was the Appellant personally or Polygon Corporation Ltd. The Chairman held that it was the Appellant personally.
(3) At what date in February the employment began. The Chairman preferred the date of February 7 asserted by Mr Louei to that of 21 February advanced by the Appellant.
(4) The agreed rate of pay. The Chairman preferred the rate of £200 per week net asserted by the Appellant rather than the rate of £500 per week claimed by Mr Louei.
(5) Whether a payment of £2,000, which was made in April or May 2000, was in part discharge of the amount payable or was referable to some consultancy work done by Mr Louei in the period prior to February 7. On this the Chairman preferred Mr Louei's evidence that it was the latter and accordingly the sum of £2,000 did not fall to be set off from the amount otherwise due.
"No documentation was produced to show whether that was a personal or a company cheque and I am not able to make any finding about that."
It is indeed correct that the Appellant did not produce the original cheque or any bank statement relating to it, and that may be a matter of some surprise. Nevertheless, he has gone on oath, in an affidavit filed in support of this appeal, to the effect that he gave oral evidence to the Tribunal, which was not challenged, that the cheque was a company cheque. We do not feel able on this hearing to reject evidence of that character. If it is correct, then the Chairman's statement which we have quoted is arguably at least inadequate and perhaps, by implication, wrong. How that error, if it was one, affects the validity of his overall reasoning may be debatable, but it cannot be said to have been plainly immaterial.
"If there was one overriding characteristic of the relationship between the parties it is that it was a personal relationship."
Mr Laddie submits that it is unclear what that means, and we are bound to say that we have some difficulty in understanding it: it seems that the entirety of the work which Mr Louei was doing was for the benefit of the business which belonged to the company.
(1) It will be necessary to see the Chairman's Notes of Evidence on the point in relation to the cheque in order to establish whether it is indeed the case that the Appellant, as he claims, gave evidence that the cheque was a company cheque. This will presumably require the transcript of only a very short part of the notes, but it will be necessary to look at the evidence of the Appellant and it would be prudent to see also what was put to Mr Louei in cross-examination.
(2) The Notice of Appeal as at present drafted, although it challenges the Chairman's finding on this issue, does not do so in terms which are particularly helpful in identifying the issues of law, and we direct that a clearer and more specific amended Notice of Appeal be lodged within 14 days. We hope that Mr Laddie may be able to assist in the drafting of this point. We have considered whether to seek to restrict the Appellant to the two precise points which we have identified above and thus to exclude some of the other arguments raised by Mr Laddie which impressed us less. However, there is a degree of overlap between the different points made and we have formed the view we may cause more confusion by seeking rigidly to restrict the particular arguments that may be raised. We would hope however that Mr Laddie, if he is involved in the drafting, will give consideration to the points which emerged in the course of oral argument and he may find it possible to narrow the grounds raised in relation to this point.
(3) We have been shown by Mr Laddie at the end of his argument a document which he tells us, on the Appellant's explicit instructions, formed a part of the bundle before the Employment Tribunal. This is a computer print-out. It appears to be the computer print-out referred to by the Chairman at paragraph 8 of the Extended Reasons, though that remains to be confirmed. Mr Laddie points out that not only does the first part of the print-out refer to the two payments made from the company to Mr Louei at the very end of the contract, to which the Chairman did indeed refer, but it also shows a cheque drawn in May 2000 in the sum of £2,000, in favour of Sutton Restaurant: this was an entity associated with Mr Louei and which appears on the invoices which Mr Louei submitted to the Appellant. He therefore suggests that this strengthens the evidence that the cheque was indeed a company cheque. This aspect of the document is nowhere referred to in the Extended Reasons and it is unclear to us whether the particular point now made by Mr Laddie was expressly made to the Chairman. Subject to that, this will be a point which the Appellant will no doubt wish to rely on as part of the appeal on this issue and, for the avoidance of doubt, we hold that he is entitled to do so, subject to any point that may be taken on whether it was raised before the Employment Tribunal. We direct that the Chairman's comments be sought on whether the second part of this print-out referring to Sutton Restaurant was relied on in evidence and for the transcription of any notes relating to it.