Appeal No. EAT/1389/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
	On 14 January 2002

Before
MR COMMISSIONER HOWELL QC
MR J R CROSBY
MR S M SPRINGER MBE

MR P READ	APPELLANT

MRS A ADAMS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	No appearance or 
representation by or
on behalf of the Appellant

MR COMMISSIONER HOWELL QC

1	In this appeal, which is before us today for preliminary hearing, Mr Paul Read who is the proprietor or manager of a public house or restaurant, known as The Apple Tree in Clacton seeks to have set aside as erroneous in point of law the Decision of the Bury St Edmunds Employment Tribunal sitting on 2 October 2001, set out in Extended Reasons issued to the parties on 5 October 2001, at pages 1 - 7 of the appeal file before us.  

2	The proceedings before the Tribunal were brought against Mr Read by a former barmaid at The Apple Tree, Mrs Amy Mary Adams and claimed that she had been unfairly and wrongfully dismissed from her employment, and was due sums for payment in lieu of notice and holiday pay in addition to whatever compensation was due to her for her unfair dismissal.  The unanimous Decision of the Tribunal, before whom Mr Read failed to appear, was that the Applicant was unfairly and wrongly dismissed and they held that the Respondent was in breach of part II of the Employment Rights Act 1996 by failing to pay her holiday pay on termination of her employment.  They accordingly awarded her a basic award of £160 odd plus a compensatory award of the sum of £264, £107 as damages for failure to give notice and £65 odd for holiday pay, making a total of £597.20 awarded.

3	The facts and the Tribunal’s reasons for making that award on the basis of the evidence as presented to them by the Applicant in person, in conjunction with the documents, were as set out in the Tribunal’s Extended Reasons as follows:
“2     The facts for the purposes of this Decision are that the applicant started work at the Apple Tree public house in Little Clacton in May of 1997.  She has worked as a barmaid there on various hours and days, but latterly she had been regularly working on Saturday and Sunday evenings, working a total of 9 hours over those evenings and being paid £35.70 for that commitment.  The applicant is 53 years of age.  
3.     On 14 April the applicant was suffering from a cold and had lost her voice.  She arranged that her mother ring to say that she could not come in that evening.  She reported back to the applicant that Mr Read had slammed the phone down on her and appeared upset.  On 19 April the respondent posted a letter which was dated 10 April in these terms:-
“I am afraid that due to staff restructuring and the cancellation of Karoake, you are now surplus to requirements.  You are therefore redundant from this date.  As you have already used some of the year’s holiday entitlement, this has been credited in lieu of notice.”
……
7     Those are the relevant facts.  Upon a complaint of unfair dismissal it is for the Tribunal to be satisfied by the respondent (and the burden of proving it is upon him), that he dismissed for a potentially fair reason.  The respondent in this case has asserted the reason as redundancy but has accepted in his Notice of Appearance that another worker was appointed to work similar hours in place of the applicant.  By virtue of that admission and the applicant’s evidence, we do not consider that the respondent has made out a potentially fair reason for dismissal.  As the burden of showing the reason is upon him, the inevitable result is that he has failed to satisfy us of the reason advanced in the Notice of Appearance the dismissal is unfair.  
8     The applicant over the period of 1 October 2000 to end of April 2001 would have been entitled to a total of 7/12th s of her four week holiday entitlement under the Working Time Regulations.  In money terms that amounts to £83.30.  Against that she has taken one days holiday amounting to the sum of £17.85, giving a net entitlement for holidays accrued due but not paid of £65.45.  The applicant was entitled to 3 weeks notice.  At her pay rate that amounts to £107.10 when notice is not given.  There is a requirement to pay damages in lieu of notice.  For those damages the respondents are ordered to pay £107.10.”

Against that Decision Mr Read seeks to appeal on grounds set out in his Notice of Appeal dated 7 November 2001 which first contends that, in the Tribunal’s calculations on the Working Time Regulations the amount has been miscalculated and should have been only based on a three week entitlement, instead of the four the Tribunal awarded.  

4	The major part of the document submitted by way of a Notice of Appeal is, however, concerned with issues of fact in the way the Tribunal dealt with the evidence, and contains various contentions by Mr Read on the facts which, no doubt, consist of what he would have said before the Tribunal, had he chosen to attend before it at the hearing.  Mr Read does not appear before us either, but this morning a fax message was received by the Appeal Tribunal from Mr Read enclosing a further copy of his Notice of Appeal and supporting documents and saying:
“Please hear this case in my absence as previously requested.”
We are quite satisfied that in the light of that, the right course for us is to proceed to deal with the case on the documents before us as we have.  

5	We have not been satisfied that the Notice of Appeal discloses any arguable ground to warrant us directing this case to go forward for a full hearing, inter partes, before the Employment Appeal Tribunal.  In the first place, the contention put forward in Mr Read’s documentary submission about the Working Time Regulations is simply wrong.  Under the Working Time Regulations 1998 SI No 1833 it is quite clear that the entitlement to annual leave by reference to leave years for any period beginning after 23 November 1999 is four weeks and not three, see Regulation 13(2)(c).  We note that the document submitted by Mr Read refers to a period from April 1999 which was during the phasing in period for that Regulation and we are quite satisfied that it is Mr Read who is mistaken about this and not the Tribunal.  

6	Secondly and more substantively, having considered all the contentions put forward by Mr Read as regards the facts, we have not been persuaded that his attempt to have these matters re-opened by way of appeal before this Appeal Tribunal represents anything more than an attempt to re-argue and re-litigate issues of fact which have already been properly determined by the Employment Tribunal at the hearing on 2 October 2001.  The fact that the losing party is not happy with the Tribunal’s Decision on matters of fact on the evidence is not, of course, a ground in law for this Appeal Tribunal to interfere with the result, and that is especially so where the party complaining has not even sought to attend before the Tribunal to make out his case on the facts in the first instance.  

7	Accordingly, we have not been satisfied that any arguable ground exists to warrant allowing  this appeal to go forward any further and we accordingly now dismiss the appeal.