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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Boomerang Bus Co Ltd v. Merrifield & Anor [2001] UKEAT 0470_01_2206 (22 June 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/0470_01_2206.html Cite as: [2001] UKEAT 470_1_2206, [2001] UKEAT 0470_01_2206

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APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK

1. The Applicants, Mr and Mrs Merrifield, were employed by the Respondents, Boomerang Bus Co Ltd as drivers. Following termination of their employment in August 2000 they presented a complaint of unlawful deductions from wages to the Bristol Employment Tribunal. The claims were resisted.
2. On 5 January 2001 the matter came before a Chairman, Mr C F Sara, sitting alone. As appears from the Chairman's decision with extended reasons promulgated on 13 February 2001, the Respondent below accepted that the Applicants had not been paid for 17 days work each, but contended that they had the right to deduct those wages under Section 13(1)(a) of the Employment Rights Act 1996.
3. There was a factual dispute as to which Employee Handbook had been issued to the Applicants and was live at the material time. The Chairman accepted the Applicants' evidence that the document handed to them on 4 August 2000 contained no provision for deductions from wages. The Respondent maintained that that Handbook had been superseded by one which did provide for the relevant deductions. The Chairman resolved that factual question in favour of the Applicants.
4. Secondly, the Chairman found that in any event the Employee Handbook was not incorporated into the individual contracts of employment.
5. In these circumstances the deductions were held to be unlawful, and the Applicants were awarded their outstanding pay.
6. Against that decision the Respondent now appeals. The Appeal has been listed for Preliminary Hearing today.
7. There has been no attendance by or on behalf of Boomerang. Instead we have received a fax this morning which reads as follows:

"My apologies for not being in attendance today. This is due to a misunderstanding that a representative of this company was required to attend. May I please request an ajournment of this case.

Many thanks.

Richard Warner"

8. There is no requirement on Appellants to attend a Preliminary Hearing. They may instead rely on written submissions or appear by a representative.
9. We have considered the request for an adjournment and we refuse it. It seems to us that a commercial organisation, if it is in any doubt as to the need to attend would make enquiries of the staff at this Court.
10. Turning to the merits of the appeal we can see none. The Chairman found as a fact, preferring the evidence of the Applicants, that the relevant Handbook in force at the time did not provide for deductions from wages. That is sufficient to dispose of the case. We have no jurisdiction to retry the facts.
11. However, we have considered the further ground on which the Chairman upheld the Applicants' claims and we have concluded that there are no grounds in law for interfering with the finding, that whichever employee handbook applied, it was not incorporated into the individual contracts of employment.
12. In these circumstances, we shall dismiss this Appeal.