Appeal No.	 EAT/403/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 July 1997

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MS S R CORBY
MR D J HODGKINS CB

MR A DANN	APPELLANT

(1) MR S KEARNEY (2) MR K SMALE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR J QUIGLEY
(ELAAS)	

	MR JUSTICE KIRKWOOD:    This is a preliminary hearing of an appeal by an employer from a decision of an Industrial Tribunal that sat at Southampton on 17th January 1997 and sent its full reasons to the parties on 18th February 1997. By that decision, the tribunal found and ordered that the employer should pay to Mr Kearney unpaid wages of £1,005.00 together with £75.00 expenses, and to Mr Smale unpaid wages of £1,095.00 and £75.00 expenses. 

	It appears that Mr Kearney and Mr Smale were employed as electricians on a job at Andover. They were in fact self-employed payable on an hourly rate, so they said, in respect of a priced and timed contract to install some fire alarm systems. There was disagreement between them and their employer, as a result of which their wages which they said they were entitled to were not paid in full. They went to the Industrial Tribunal with complaints of non-payment of wages. 

	They set out their case in writing respectively in their forms IT1, and the employer set out his case disputing the claim in respect of each applicant in a form IT3. Those documents appear to have summarised the issues that lay between the two sides.

	At the hearing before the Industrial Tribunal, both applicants gave evidence. The respondent did not attend. The tribunal set out in its reasons what the issue was and what the allegations of the employer were about the shortcomings of the two applicants. The tribunal said this:

“4.	Both applicant denied the respondent’s allegations.
5.	In the face of such denial and in the absence of the respondent it is quite impossible to test the accuracy and veracity of his assertions with the consequence that one is left with no alternative but to find that in both cases the non-payment of wages was unjustified.”

The tribunal then set out the shortfall in wages that each applicant had told the tribunal of in evidence and made the awards to which I have referred.

	In a Notice of Appeal the employer made reference to and attached a letter he had subsequently received from a project manager of the contract which he said supported his contentions. 

	Mr Quigley has kindly agreed to represent the employer, Mr Dann, here at the tribunal today. He does not make anything in his argument of that letter attached to the Notice of Appeal; no doubt for the obvious reason that it does not begin to comply with the requirements and considerations as to the introduction of fresh evidence. 

	Instead, Mr Quigley seeks to argue three points.

	First, the tribunal did not make any investigation of or finding as to the detailed terms of the contracts. He says that they were contracts with complicated terms which the tribunal failed to analyse. Had they done so, he says, the tribunal should have adjourned the hearing, presumably to make a renewed call for the attendance of the employer to come and clarify issues. It is to be noted, and it appeared in the course of argument today, that the tribunal was not in fact faced with any request from the employer to adjourn the hearing for any reason, and merely had to proceed in his absence. 

	Secondly, it is said, that the tribunal made no analysis as to whether the sums claimed were properly due; and thirdly, that insufficient reasons were given for the decision.

	We are grateful to Mr Quigley for presenting the case as he does, but we are left with the clear conclusion that the way in which the tribunal approached the case in the circumstances that faced them, that is to say by reference to the written material before them, and hearing the applicants was, in the absence of the employer, appropriate. They gave consideration to the issues between the parties because they were raised in the written material. They inevitably attached weight to the oral evidence they had before them, and they adequately explained the reasons for their decision. 

	It is regrettable that the employer did not attend the hearing, that is a matter for him and it is not something we can do anything about. We are entirely satisfied that in the events that have happened, there is no properly arguable appeal to go to a full hearing, and for those reasons the appeal will be dismissed at this stage.