Appeal No.	 EAT/785/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 February 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS M T PROSSER
MR J C SHRIGLEY

MR JOHN WBSTER t/a ROOFLINES DIRECT	APPELLANT

MR E MILLER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARNG – EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	MR JUSTICE LINDSAY (PRESIDENT):		We have before us, as a preliminary hearing, the appeal of Mr John Webster in the matter E Miller v John Webster t/a Rooflines Direct. Mr Webster is in front of us in person and he runs the small business, Rooflines Direct.

1.	The chronology of the matter is that on 22nd November 1999 Mr Miller presented an IT1 for loss of earnings, bonus not paid and as to a written statement of employment. He had only been employed shortly for the job in hand, from 8th March 1999 to 23rd August 1999, less than five months. Moreover, it was five months in the spring and summer part of the year. 

2.	On 16th December 1999 Mr Webster responded with a very detailed refutation of Mr Miller’s claim.

3.	On 16th February and 26th April 2000 there was a hearing before the Chairman,  Mr I K R Brown alone; that was at the tribunal at Leeds. On 15th May 2000 the decision was sent to the parties. It was:

“(1)	The Respondent is in breach of contract and shall pay to the Applicant the sum of £1,981.34;
(2)	The name of the Respondent shall be amended to read Mr John Webster t/a Rooflines Direct.”

4.	On 26th June 2000, which, I think, was probably the last day on which a timely Notice of Appeal could be presented, Mr Webster did present a Notice of Appeal. He alleged, amongst other factors, bias in the Chairman. That led, under the Practice Directions in the Employment Appeal Tribunal, to the need for an affidavit and an affidavit was sworn on 24th July 2000. When one reads the affidavit one sees that it is not bias in any ordinary sense but bias alleged by reason of the Chairman’s computation of figures having transpired to be against Mr Webster’s interest. It is, in truth, an appeal against the findings of fact on the computations involved.  Even so, the Chairman was asked to comment, there having an affidavit on the subject. On 31st July 2000 the Chairman’s comments were received and they include several pages of computations.

5.	We attach no weight to the complaint as to bias because there is no bias in the conventional sense of misbehaviour in the conduct of the tribunal hearing or something along those lines. But we do need to look in more greater detail at Mr Webster’s Notice of Appeal. He raises a first point as follows: The tribunal held that Mr Miller’s earnings received, as per his P45, were £12,309.78 and that his total bonus earned was £12,692.12.  Therefore, said the tribunal, he had been short paid bonus of £12,692.12 minus £12,309.78, namely £382.34. But Mr Webster makes the point that whereas the £12,692.12 is for the whole period of employment from 8th March to 23rd August 1999, the other figure, £12,309.78, is only from 5th April to 23rd August 1999.  In other words, in that particular tax year, in truth a further sum, here £740, needs to be added to the amount actually received by Mr Miller.  That, of course, if done, would wipe out the difference of £382.34 and would leave a sum in Mr Webster’s favour. 

6.	We have to remind ourselves that we can only deal with errors of law. This would seem to be a question of fact. Even without the Chairman’s comments, it is doubtful whether we could have regarded it as within our province. But the Chairman has made comment on the point and he says this:

“6.	The Applicant’s P45 Form, a copy of which was put in evidence by the applicant at the hearing on the first day (document A6) does not indicate the period it covers by reference to dates. It states that the sum of £12,309-78 is both “Total pay to date” and “Total pay in this employment”.
7.	The Respondent was given a copy of the Applicant’s calculations headed “Notes” where the figure of £12,309-78 was used by the Applicant to represent his earnings during his employment with the respondent at the outset of the hearing on the second day. At the Chairman’s request the Applicant explained in open tribunal all the figures used in the calculations set out in this document.
8.	Although the Respondent was given, and took, the opportunity to cross-examine the Applicant and to make submissions to the Tribunal at the hearing on the second day, he did not challenge the Applicant’s figure of £12,309-78 as being the amount received by the Applicant from the Respondent during the period of his employment. The Tribunal, therefore, accepted that figure as being correct.”

7.	Now it seems to us that it is too late for Mr Webster to give evidence that he could have given at the tribunal and, limiting ourselves, as we must, to errors of law, we find no error of law in this first category.

8.	The second main point that Mr Webster takes one could describe by the label “seasonality”. It was Mr Webster’s case that one could not fairly judge what Mr Miller’s bonus would have been if he had worked over a whole year by simply looking to his earnings from 8th March to 23rd August 1999 and then multiplying it so as to make it fit a whole twelve months period. Because - this was Mr Webster’s argument - that would ignore the fact that the season 8th March to 23rd August represented the best part of the year in what was a seasonal trade. The Chairman comments on seasonality and he says this:

“1.	At the hearing on the first day the Respondent (now the Appellant) did contend that the conservatory business was seasonal. He maintained that the peak time was between Easter and the end of September but did not produce any calculation to support this contention.
2.	When the hearing was being adjourned (primarily to allow each party further time to consider the figures produced by the other and to reach agreement on them if possible) I asked both parties to consider the effect that seasonality might have to their calculations.
3.	At the hearing on the second day the Applicant stated in evidence that the main area of the business, fascia boards and guttering, was an on-going problem and therefore not seasonal. He accepted that the best months for the business were March to October but said that he felt that any seasonality should be disregarded as his sales target was set at £6000 per week throughout the year. The Respondent (not the Applicant) said that he thought winter sales would be as much as one third down on March to October sales.
4.	Neither party produced any evidence to substantiate what effect, if any, the seasons had on sales. It felt, therefore, that it would be wrong for the Tribunal to make any adjustment for seasonality.”

	Well, it is for the Chairman to decide what evidence to accept. He took the view, on what he heard, that it would be wrong to make a discount for seasonality and that is a decision of fact based on the evidence heard or not heard and we cannot say that any arguable error of law is manifest in that part of the case, so that does not assist Mr Webster.

9.	A third point is holiday pay. Mr Webster makes the point that it is wrong for the purposes of computing holiday pay to take as the weekly wage the £550 gross which was allowed to Mr Miller not as a salary but on account of his earnings, which were entirely bonus-related. The right to holiday pay where there is no express agreement on the point, derives from the Working Time Regulations 1998 – see Harvey R/1072 onwards and see in particular Regulations 14 and 16. Regulation 16(2) refers to section 221 to 224 of the Employment Rights Act 1996 for the computation of a week’s pay for holiday pay purposes. The computation in those sections requires a look at whether there were normal working hours and, if not, in the way set out in some detail in those sections, then one has to look at a particular 12 week’s average. The tribunal here simply seems to have taken the £550 gross allowable sum and multiplied it by two in its paragraph 8.  It is, as it seems to us, arguable that it erred in doing so. 

10.	We do allow the case to go forward to a full hearing on the subject of the computation of holiday pay. That, as it seems to us, is the only point to go forward. The rest of the Notice of Appeal has to be dismissed. We would hope that the parties, seeing a relatively small sum now left as a subject of appeal and as in possible debate between them, could possibly come to terms – that is, of course, entirely for them. We recognise that Mr Webster feels very strongly that he has not been fairly treated, in the sense that he tells us he has given considerable support to Mr Miller and has paid Mr Miller that which he owes Mr Miller. But we can only emphasise that we can only deal with errors of law and the only error of law that we have identified as arguable is in relation to holiday pay, as we have just explained.  All we can do is at this stage is simply to allow the holiday pay issue alone to go to a full hearing.