Appeal No. UKEAT/0099/04

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 19 May 2005

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

ALTERNATIVE WELDING SERVICES LTD	APPELLANT

MR DEREK KNOX	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

 
For the Appellant	No Appearance
Nor Representation

 	

For the Respondent

 	

Mr Derek Knox
In Person
24 Stuart Terrace
BATHGATE   EH48 1DZ

 	

SUMMARY

CONTRACT OF EMPLOYMENT

Notice and pay in lieu

Unpaid wages where respondent company disputed identity of employer. 

THE HONOURABLE LADY SMITH:

1.	This case is about unpaid wages, and I will refer to the parties as claimant and respondents.  This is an appeal by the respondents against the decision of the Employment Tribunal sitting at Edinburgh, Chairman Mr Kenneth McGowan, who was sitting alone.  It was registered with reasons on 28 October 2004.  The claimant represented himself before the Employment Tribunal and before me.  The respondents were not present or represented before the Employment Tribunal and they were not present or represented before me, despite appropriate intimation of the hearing having been given. 

2.	The claimant claimed that he was employed by the respondents, and that on 25 May 2004, he was told he no longer had a job and that his entitlement to wages would not be honoured.  The Employment Tribunal found the claimant entitled to payment of £1,008.50 as wages, lying time and accrued holiday pay and ordered that that sum be paid by the respondents, having checked their name and designation as shown on wage slips that were produced by the claimant.

3.	The respondents lodged a written appeal notice in which they submitted that the claimant was in error in stating that he was employed by them.  That written notice said that he was in fact, employed by Marc Containers Limited, trading as Alpha Skip Hire.  That submission was in accordance with the terms of the letter that had been written to the Employment Tribunal by the respondents’ Mr Williams, dated 13 October 2004.

4.	The claimant and respondents, not having appeared today to argue the appeal, the appeal will be dismissed.  I would add, however, that it is evident that the respondents were well aware that the claimant was claiming that he had been employed by them, that there was a hearing due to take place before the Employment Tribunal in which they were named as respondents, and, indeed, that there was a hearing due to take place before this Tribunal today. They chose not to attend or be represented at the earlier hearing or today’s hearing.  I note that at the earlier hearing the claimant produced wages slips which, notwithstanding the respondents’ written assertion to the contrary, make it quite plain that they were the claimant’s employers, and, in these circumstances, had the respondents appeared today, it seems to me, that I would have found it very difficult to find that the Employment Tribunal erred in law in any respect.

5.	The appeal is, however, in any event, dismissed.

6.	Before me today, the claimant made a motion under Rule 34 of the Employment Appeal Tribunal Rules 1993 for a costs order, in respect that he will lose a day’s wages for his attendance here today, amounting to some £70 and he has incurred travelling expenses amounting to some £5.

7.	I have no hesitation in concluding that the proceedings brought by the respondents before this Tribunal, were unnecessary, improper and misconceived and, that such a costs order ought to be made.  However, I do not make a determination on the costs order at this stage, lest there is some factor of which I am unaware and, could be brought to my attention by the respondents, indicating that it is not appropriate that such an order be made.

8.	I will, accordingly, order that the procedure set out in Rule 34(5) be followed, namely that whereby the Registrar will send notice to the respondents, giving them the opportunity to give reasons why the order should not be made.