Appeal No.	 EAT/942/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR S M SPRINGER MBE
MISS A MACKIE OBE

MR A WILLIAMS-KEY	APPELLANT

ANITE SYSTEMS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr A Hillier
(ELAAS)	

	JUDGE PETER CLARK:	The difficulty facing us at this ex parte preliminary hearing is that, due to his continuing disability, the Appellant, Mr Williams-Key, has not been able to appear before us today or to attend in order to give instructions to Mr Hillier, who has assisted us under the ELAAS pro bono scheme.  We are really left to consider whether the appeal discloses any arguable point of law on the basis of the papers, including the Appellant’s over-complicated written submissions, and such assistance as Mr Hillier has been able to provide.

	That said, it appears to us that the kernel of this appeal lies in the Tribunal’s finding, in paragraph 11 of their extended reasons, that under clause 12 of the contract of employment made between the parties it is provided for the employee to be paid “such sums as the [PHI] scheme may provide”.  In fact, those words do not appear in clause 12 of the contract, which we have seen in full and which is referred to in part in paragraph 5 of the Tribunal’s reasons.

	That apparent misstatement of the contractual position goes to the heart of the Appellant’s complaint that payments made to him of sick pay excluded his own pension contribution benefit, referred to in the Employee Handbook which formed part of his terms and conditions of employment subject to a manuscript addition to clause 21 of the contract, initialled by the parties, which provided that in the event of a conflict the terms and conditions of the contract took precedence over the Employees Handbook.  We think it arguable that no conflict exists between the terms of clause 12 of the contract and the relevant Handbook provision, and that in accordance with the Handbook the Appellant is entitled to receive both the employer and employees contributions as claimed.  It is common ground that he had not received the employees contributions to the pension scheme by way of sick pay and that forms the basis of the unauthorised deductions claimed in this case.

	It seems to us that this apparent misstatement of the contractual provisions gives rise to an arguable point of law which ought to go forward to a full appeal hearing.

	Further, determination of this deduction point may have an effect on the Tribunal’s finding as to the Appellant’s reference under section 11 of the Employment Rights Act 1996.  On this aspect we note that in paragraph 17 of the Tribunal’s reasons they appear to be making a declaration, although in their decision they dismiss all claims made by the Appellant.  

	In these circumstances, we shall direct that the case be listed for a half day hearing.  The point has arisen that in this case the Respondent’s Notice of Appearance was struck out on the basis of the Respondent’s failure to comply with an Order for Discovery.  That raises the question as to whether or not the Respondent has any locus to take part in this appeal.  Mr Hillier has submitted that it does not.  We are not convinced.  We think the proper course is to direct that both parties submit written representations marked for my attention within 14 days of the promulgation of this judgment, dealing with the standing of the Respondent.  Having considered those representations, I shall then give directions, if necessary, for an Oral Direction Hearing to take place before the President to determine this important procedural point.  So far as we are aware, it has never been determined.

	Subject to that question, the Appellant and if it transpires that it has locus the Respondent should prepared skeleton arguments dealing only with the points identified above, those skeleton arguments to be exchanged between the parties and copies lodged with this Tribunal not less than 14 days before the full hearing.  The category of listing will be presently category C, subject to any further directions in the event that the matter goes before the President and he directs that it should be categorised otherwise.  We should make it clear that in our view this case depends solely upon the proper construction of contractual documents.  The Appellant’s additional grounds of perversity contained in his written submissions and in the Notice of Appeal are in our view misconceived and are dismissed.  At the full appeal hearing the Tribunal will require oral submissions by or on behalf of the Appellant.  This is not a case where it is satisfactory to deal with the matter solely on the basis of written submissions.