Appeal No. EAT/224/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 March 2001

Before
MR RECORDER BURKE QC
MISS A MACKIE OBE
MR N D WILLIS

MR ARSHAD MAHMOOD	APPELLANT

MR D R BARKER
T/A DERBY TRANSIT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondent	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE RESPONDENT	

MR RECORDER BURKE QC:

1.	The appellant in this appeal was employed by the respondent from April 1998 to September 1999, as a motor mechanic at the respondent’s repair premises in Derby.  His employment came to an end after an altercation between them which arose from a dispute about money.  It is not necessary for present purposes to consider the facts which gave rise to the termination of the appellant’s employment any further.

2.	The appellant has today appeared before us in person.  The respondent has not appeared at all;  but we have received a letter written on his behalf by his solicitors, indicating that he is not going to be represented here today because the view is taken that this appeal is a matter between the Chairman of the Tribunal and the appellant.  That is an error on their part because the respondent is entitled to be here as a party as are his solicitors on his behalf;  they are of course entitled to make such submissions as they wish.  However, they have not been present nor have they put forward any submissions.

3.	The appellant brought proceedings in the Employment Tribunal in which he made a number of claims.  His claim that he had been unfairly dismissed succeeded.  The majority of his claims that the respondent had made unlawful deductions from his wages or had underpaid him failed, although one succeeded.  This appeal concerns one of the appellant’s complaints of breach of contract, namely, that the respondent had failed to pay to him a bonus due to him in addition to his wages.  The Tribunal dismissed that complaint.  It found that there was an oral agreement between the parties that a bonus would be payable if the gross profits of the respondent’s business increased in any year by an amount above 10%.  The Tribunal did not make any finding as to what level of bonus was to be paid in the event of such a profit increase but found that the respondent showed to the appellant and the only other relevant employee a sliding scale of calculations and explained that realistically in respect of the 1998/1999 year, they could expect to make £5,000 between them.

4.	The Tribunal did not need to make any further finding about the contractual terms relating to bonus because it decided, having seen a set of accounts for the respondent’s business for the year ending 31 May 1999, that the pre-condition for a bonus payment, namely, the profit increase to which we have referred, had not been satisfied.  Indeed, on the face of the profit and loss account within the accounts to which we have been referred, the turnover of the business had fallen in the year to 31 May 1999, as compared with the previous year, from £348,000 odd to £266,000 odd (we are rounding figures to the nearest thousand for convenience) and the gross profit had fallen from £155,000 to £109,000.  On this basis the Tribunal dismissed the appellant’s complaint in relation to bonus.

5.	There is no doubt that the respondent did not produce the accounts to which we have just referred or any other documents until the morning of the hearing itself.  On that morning the appellant, who was unrepresented, arrived at the Tribunal and, while in the waiting room, was given a bundle of thirty or more pages of documents which included a form of witness statement on behalf of the respondent.  In that statement the respondent made a number of serious allegations against the appellant, allegations of aggression, awkward behaviour, seeking improperly to get compensation, being incompetent in various ways and others.  Included within these allegations was an allegation that the appellant’s wife had been guilty of harassing the respondent’s wife.  The appellant had never heard of any of these allegations before in any detail and there is little, if anything, in the IT3 to forecast such allegations.

6.	The appellant had about half an hour between the time when the documents were handed to him and the time when he was called into the Tribunal.  When he was called in, the Chairman indicated that he understood that the appellant had only just, within the last half hour or so, had an opportunity to see the documents and asked whether the appellant was prepared to go on.  The appellant said that he was;  and the hearing proceeded.

7.	According to what the appellant has told us today and what he said to the division of this Appeal Tribunal which heard the preliminary hearing of his appeal in June of last year, the accounts which purport to show that, far from there being a 10% increase in gross profit for the year May 1998 to May 1999, there had been a substantial decrease in gross profit, were not included within the documents which were handed to him when he first arrived at the Tribunal.  He said to this Appeal Tribunal at the preliminary hearing and has repeated to us now that the accounts only first came to light when he was asked questions in the course of cross-examination about the performance of the business and the Chairman asked the solicitor representing the respondent what he was basing his questions on and elicited a response which indicated that the solicitor held the accounts in his hand or on the table in front of him.  The appellant says that, at that stage, he pointed out that he had never seen the accounts.  There was a debate between the Chairman and the solicitor as to whether the accounts were private or should be made available to the appellant which resulted in the accounts being then shown to the appellant for the first time, although at the end of the hearing, they were for some reason taken away so that he did not take a copy home.  

8.	If that is what happened, it is manifest that the appellant had little or no time to examine and absorb the accounts and to consider whether he should accept them or whether there was any way in which he could attack them or show that they were inaccurate.

9.	Appreciating that this history might not be entirely consistent with the recollection or notes of the Chairman or, for that matter, with the recollection or notes of the respondent, at the preliminary hearing this Appeal Tribunal asked the Chairman if he could inform this Appeal Tribunal as to the way in which the accounts were produced during the hearing .  The Chairman has done his best to answer the request from this Tribunal.  He has supplied a copy of the first page of his notes which record that the appellant was indeed asked at the beginning of the hearing whether he wanted to go on and that the appellant said that he did.  

10.	The Chairman has referred to one answer in his notes in cross-examination of the appellant on the bonus issue, relating to a document 27, but was unable to help us as to what document 27 was.  While the Chairman cannot positively confirm that the accounts were produced during the course of the hearing as opposed to before the hearing started, equally, it seems that he is unable to confirm that that did not happen.

11.	When the appellant had time after the hearing to consider what had happened, he wrote a letter dated 17 January, the hearing having been on 5 January 2000, to the Tribunal which was entirely properly treated as asking for a review.  The Chairman refused the application for a review on the basis that it had no reasonable prospects of success because the appellant had told the Tribunal at the hearing that he was happy to go on and did not need any more time.  It is from the refusal of that application for a review that the appellant now appeals.

12.	In his letter to the Tribunal of 17 January he says this, and I quote:-

“Secondly when I came home I was not convinced with the evidence that Mr Barker had provided regarding his accounts.  As you are aware all the relevant papers were given to me half an hour before the hearing.  It was not possible for me to absorb the information.”

13.	In that paragraph it seems that the appellant was indicating that he had had the accounts with the papers given to him half and hour before the hearing, contrary to what he tells us today. On the other hand, in a subsequent letter to the Tribunal, dated 4 February, in which he asked for a copy of the accounts (he not having taken the accounts home at the end of the hearing) he says:-

“As I mentioned on the phone the copy of the accounts was given to me during the hearing and then taken back by Mr Barker’s solicitors.”

14.	The issue before the Chairman was whether, in the interests of justice, a review ought to be granted.  Clearly in making his decision on what he correctly treated as an application for a review, the Chairman was exercising a discretion which we can only interfere with if the Chairman failed to take into account a material fact, took into account a fact which was not a material fact or produced a result which was so unreasonable that no reasonable Chairman could have reached it.

15.	The applicant had been unrepresented at the hearing.  The respondent was represented.  Why the solicitors acting on behalf of the respondent, had not taken the sensible step of providing the documents in advance to the applicant, we do not know, but there was of course no order for discovery or disclosure of documents, and they did not do so.  What is certain, is that the applicant, unrepresented as he was, was confronted at the outset with a batch of documents consisting of 30 odd pages, or more if the accounts were included within them, with which he was wholly unfamiliar.  He is a motor mechanic with some limited managerial experience it seems to us but not a man experienced in dealing with either accounts or law or with tribunal procedure.  He maintains that he could not reasonably have been expected in context of the pressure of having to put forward his own case in which he was making six different complaints all of which were in issue, to be able to digest and analyse all of those documents satisfactorily.  He has pointed out to us that those documents included the respondent’s statement, which made all the allegations to which we have already referred which the appellant had not anticipated and by which he and his wife, against whom allegations were also made, were very upset and distressed.  Most lawyers, in the situation in which the appellant found himself, would have asked for an adjournment.  The appellant did not.  He tells us that it did not occur to him to ask for an adjournment because he did not think that it would be possible to get one;  and of course the Chairman did not suggest an adjournment as opposed to further time during the course of that day.  No doubt if the question of an adjournment had been raised by the appellant, the Chairman would have given it proper consideration together with his colleagues;  but it was not raised and thus the appellant struggled on when, had he been represented, no doubt wiser counsels would have prevailed.

16.	The Chairman, in his review decision, concluded that it would not be in the interests of justice to grant a review because the appellant had been given an opportunity to have more time and had declined it.  It does not appear that the Chairman took into account that the circumstances were such that the appellant, being unrepresented and being unfamiliar with the procedure, had not appreciated that it was in his interests to seek an adjournment and had not appreciated that he could have asked for an adjournment without prejudicing his position.

17.	This is a very unusual case in many ways, we do not want to be thought to be establishing any principal of procedure or practice, rather than considering only the specific facts of this case.  This was a decision, refusing an application for a review, of a very experienced Chairman, sitting alone.  However, on this occasion, in our judgment, the Chairman failed to take into account material facts, namely, that the applicant needed an adjournment, did not appreciate that he could ask for an adjournment and had not been invited to think about whether he should ask for an adjournment and in that respect, on this occasion, it is our judgment that the Chairman erred in law.  

18.	Had he considered the facts which we conclude that he did not consider, he would have appreciated that, invited to consider an adjournment, the appellant would in all probability have asked for one and thus would have had time to get to grips with the accounts which, even on the basis that the accounts were given to him in the bundle which he received half an hour before the hearing started, he had, it seems to us, no proper opportunity to understand or digest.  If the accounts did not appear until the appellant was being cross-examined, the absence of any proper opportunity for the appellant to consider the accounts was of course ever greater;  and the merits of his application for a review were, the stronger.

19.	We have looked at the accounts with a little care because, on the face of the figures, it might be thought that they indicated a position so far away from a 10% increase in gross profit that, even with an adjournment, there could be no successful attack on the accounts such as to establish that the contractual trigger for the payment of a bonus had ever been in place.

20.	Having heard the appellant on that issue and questioned him closely on how he proposes to attack the accounts, we do not consider that it would be right in the interests of justice to deprive him of the opportunity of making that attack at a review hearing.  We are not for one moment suggesting that such an attack would or would not be successful, we simply do not know;  but we take the view that there should be a review at which the opportunity to consider whether there is any valid attack on those accounts will arise .

21.	For those reasons we allow this appeal and substitute for the decision rejecting the application for a review, a decision that there should be a review.  The matter will now go back to the same Tribunal for a review hearing to be arranged.