Appeal No. EAT/1171/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 June 1998

Before
HIS HONOUR JUDGE J HULL QC
MR D A C LAMBERT
MRS R A VICKERS

MR I J SAUNTSON	APPELLANT

ECO MANUFACTURING LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	

	JUDGE HULL QC:   Mr Sauntson whose appeal this is has not appeared before us today.  It appears, so far as searches can reveal it, that he is not in the building and certainly not outside our room, so it being 12.20 p.m. we must proceed without him.  He was duly notified, as we are told, of this hearing.  

	Mr Sauntson was employed from 22 April 1996 as a Driver by the Respondents, ECO Manufacturing Ltd of Ramsey, Cambridgeshire.  They are manufacturers of office furniture.  His employment was ended on 31 January 1997. 
	
	On 10 March 1997 he presented his IT1, his application to the Industrial Tribunal.  After saying that his employment had ended on 31 January he said that his complaint was:
“Deductions from wages as tax & N.I. but not declaring the deductions to the Inland Revenue.”

That was his first complaint apparently.  A complaint of misbehaviour, in effect, against the employers which the Inland Revenue would no doubt be interested in if it was made to them.  The next matter is:
“Payment of sick pay on payslip but not included in total nett pay so not actually paying sick pay.  Also not paying night out payments as a totally separate payment as stated by the Inland Revenue.  Deducting money from wages without any notification.”

Although one would certainly want to hear more details, these were, on the face of it, matters which the Tribunal would be entitled to look into and might find that they could give relief in respect of.  

	The Industrial Tribunal, the employers having put in their answer, duly sat on 15 July at Bury St Edmunds under the Chairmanship of Mr Mitchell.  We would, in the absence of the Appellant, refer to their decision.  They said as follows, after referring to the application:
“2	At the hearing today an entirely different case has been put.  At the outset of the proceedings it was identified that the issues related to allegations of breach of contract and that they concerned five separate headings.  Firstly, a failure to pay night out money; secondly, a failure to pay overtime at enhanced rates; thirdly; a failure to pay accrued holiday pay; fourthly, non-payment of contractual sick pay and fifthly, underpayments as a result of miscalculations of pay due in December 1996 and January 1997.”

	What happened was, as the Tribunal found in paragraph 3 of their reasons, that:
“The respondents have agreed to amendments to enable these issues to be litigated and have come prepared to deal with the issues set out above.  The case had been listed for a short hearing but the parties arrived armed with 200 pages of documents and the case lasted a full day and judgment was reserved.”

	The Tribunal, having thus with considerable difficulty (one would have thought) had to apply themselves to a quite new case, dealt separately with the issues which they now discerned.  They found that there was nothing in the “night out” money point.  They explained that in a way which to us appears to be a perfectly proper and acceptable way of explaining the matter and they say there was nothing in that point.  It basically arose from a misunderstanding and from evidence by the Applicant that they did not accept.  It was up to them to say what evidence they accepted.  

	They went into the question of overtime pay.  Again, they found, on investigation, that there was nothing in that complaint.  There was an unusual method of paying overtime pay and it was lower than would normally be expected, but that was what was agreed, as they said, looking at the document.  

	Then they went into holiday pay.  The employers had attempted to resist this.  The Tribunal, apparently adopting exactly the methods which they had with the other complaints, looked at the reality of the situation by looking at all the documents in the case and they found that holiday pay was being recorded regularly on a monthly basis and they said, therefore, that the contention of the employers that the Applicant had not worked long enough to earn any holiday pay was quite wrong.  They said that looking at it as a matter of credibility they thought that he had earned the sums which were recorded as credited to him.  They might have referred, although they do not, to the Apportionment Act.  They might have referred to the usual practice of employers.  They were quite content with the evidence they had seen, and in fact the genuine situation was that holiday pay should accrue on this monthly basis and they awarded £360.60 for holiday pay.  

	They then went on to sick pay.  They were satisfied that the Applicant had received his sick pay which he claimed, and his claim failed there.

	On the matter of miscellaneous deductions they looked at documents and they also looked at the Inland Revenue’s assessment.  Having considered those matters, they were satisfied that there was nothing due there.  They found that the employers had, in this respect, acted generously.  There was a dispute.  The employers had paid the amount in dispute and said “if we ever find out that we are right and you are wrong we will deduct that”, and that is exactly what had happened and the Tribunal found that the employers were correct about that.

	The Tribunal finished by giving what was no doubt a well merited rebuke to the employers for their inadequate and incompetent way of carrying on, in providing no documentation to the Applicant, thus no doubt helping to bring the litigation on themselves and they recommended that the employers should address their shortcomings in this respect, which they described as highly unprofessional; and should also give proper written terms and conditions of contract as soon as possible to their employees, in order to avoid misunderstandings in the future.  We hope that the advice given by the Industrial Tribunal, which was very much within their competence, will be heeded by the employers.

	To that extent Mr Sauntson succeeded and got his holiday money but in the other respects he failed.  Now he appeals to us.  He says in his Notice of Appeal that his grounds are that:
“The Industrial Tribunal failed to take into account material facts regarding the incorrect deductions of income tax & N.I. contributions which if taken proper account of would have led to the Appellant receiving additional payment. Also the right of the appellant to receive equal pay.”

This is a matter which seems to us to have nothing to do with his original application and not to have been raised in front of the Industrial Tribunal, if we understand that complaint correctly.  No point of law is there stated.  It seems to us simply to be saying that there is incorrect accounting.  If there was some point of law underlying the errors, then it was for the Appellant to raise it and for the Tribunal to have it raised in front of them and for us to be shown what the point of law is.

	In the circumstances we have not been able to see any point of law.  We have been much fortified in that by the courtesy of Ms Simler who has attended voluntarily here today to help Appellants and who has stayed to see if she can help us.  She has of course no instructions, Mr Sauntson not having turned up, but she has been good enough to read the papers and to tell us that she too has been unable to see any error of law and she addresses us therefore as amicus curiae on that basis and we are very grateful to her for saying that.
	We, even as I say with all the assistance we have been able to have, have not been able to discern any point of law and it follows that we must dismiss this appeal on the basis that there is no reasonable prospect of success and no arguable point of law.