Appeal No. EAT/0592/02 ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 May 2003

Before
HIS HONOUR JUDGE PETER CLARK
MS G MILLS
MR J C SHRIGLEY

MISS D A KERR	APPELLANT

IKON OFFICE SOLUTIONS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR IAN WILSON
(of Counsel)
Appearing under the 
Employment Law Appeal 
Advice Scheme	

JUDGE PETER CLARK

1	On 7 October 2002 a division on which we all sat adjourned this preliminary hearing for Chairman’s Notes of evidence and an affidavit from the Respondent on a single issue, namely whether there was evidence to support the finding of the Employment Tribunal below (Mr Colin Sara, sitting alone at Bristol) at paragraph 30 of his extended reasons dated 8 April 2002 that the Appellant, who brought a claim of unlawful deduction from wages against the Respondent employer had been paid commission on all invoices up to 30 June 2001.  We refer to the judgment which we gave at that preliminary hearing for the background.

2	The Chairman’s notes reveal that in cross examination Miss Kerr, the Appellant, said, 

“Until I left I was paid monthly on all contracts still surviving.” 

Her employment with the Respondent ended, the Chairman found, on 7 June 2001.

3	It is the Appellant’s contention in this appeal that she did not receive commission due in respect of work for Devon County Council for the months of May and June 2001.

4	In a review decision dated 19 April 2002 the Chairman held that he had reached his findings in the substantive decision dated 8 April 2002 on the basis of the schedule produced by the Appellant.  That schedule includes a claim of £1,211.42 in respect of each of the months of May and June 2001 which on the face of paragraph 30 of the Chairman’s substantive reasons was not included in his computation of loss.

5	The Respondent has lodged a witness statement of David Brook of counsel, who represented the Respondent below, dated 31 January 2003. In that document he states: 

(1)	“I have read the Chairman’s Notes of evidence dated 11th October 2002 and respectfully agree with the contents thereof. In relation to the particular sums now the subject matter of the appeal, at the Tribunal Hearing the Applicant relied upon her Schedule of Commission in which she set out the sums allegedly due. The contents of this Schedule were disputed by the Respondent which asserted that all the Commissions due had been paid. 
(2)	The subject matter of the appeal is one of fact and not of law. On the evidence before him the Chairman was entitled to find as he did. 

6	Having heard Mr Wilson, who appears on behalf of Miss Kerr today under the ELAAS pro bono scheme, we all of us remain uncomfortable with the present state of affairs for the following reasons:

(1)	on the face of the Appellant’s schedule there remained outstanding commission on the Devon County Council contract which was not recovered in the claim (reasons paragraph 30).  If as the Chairman says he relied on her schedule that discrepancy remains unexplained. 

(2)	The Appellant’s cross-examination goes no further than agreeing that she was paid monthly until she left.  That may or may not include the May payment; it is unlikely to include the June payment. 

(3)	If, as Mr Brook asserts, there was a factual dispute on the Appellant’s schedule which was resolved in favour of the Respondent, that finding does not appear in the Chairman’s reasons. 

(4)	It follows, in our provisional view at this preliminary hearing stage that it is arguable that the Chairman did not give adequate reasons for his original decision apparently omitting the commission due for May and June in respect of the Devon County Council contract, or he failed properly to consider the Appellant’s review application. In either event these are matters of law, not fact, properly justiciable on appeal. 

7	In these circumstances we have concluded that this matter ought to proceed to a full bilateral hearing.  For that purpose we have given the directions which will appear in the Order to be issued following this hearing.