Appeal No.EAT/0177/02 MA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 November 2002

Before
HIS HONOUR JUDGE J ALTMAN
MR P R A JACQUES CBE
MR D LEWIS

MR STEPHEN DERHAM	APPELLANT

MR A CALLAGHAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

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

HIS HONOUR JUDGE J ALTMAN

1	This is the Preliminary Hearing of the appeal from the decision of the Employment Tribunal held at Liverpool on 19 December 2001, when upon the Respondent’s application, in respect of an unauthorised deduction of wages and a failure to pay for a period of notice entitlement, the Tribunal ordered the Tribunal ordered the Respondent (the Appellant in these proceedings) to pay £1,062 in respect of unauthorised deduction of wages and £540 in respect of the two week’ pay.

2	It appears that the Respondent had applied for a postponement of the hearing but this was refused.  The Appellant then appealed to this Employment Appeal Tribunal and his Notice of Appeal alleges that, first of all as to the hearing before the Tribunal, he had attempted on two occasions to postpone the hearing because of pressing business affairs and because he understood that the Applicant was going to be successful, he had discussed the matter with Mr Cooper at ACAS to put forward a proposal.

3	The terms of the agreement was to settle the matter on the Respondent’s paying £1,015.  This was through ACAS, it says in the Notice of Appeal, but the extent to which it was a concluded agreement, even on the Notice of Appeal, is far from clear.  It appears that the ACAS representative tried to contact the Applicant and at all times failed, although an indication was given, according to the Respondent, that the Applicant’s solicitor would think it reasonable to accept the offer.  But of course that does not, on the face of it, mean that the Applicant accepted it.  The cheque was paid through the Company account and cleared on 27 December 2001 and there was no mention of these matters in the Tribunal decision.  The Tribunal decision was that there was at a hearing on 19 December and it was promulgated on 21 December.  So the hearing and the promulgation, if the Respondent is right, came between his paying over a cheque to ACAS and that cheque clearing.

4	This matter came before the Employment Appeal Tribunal on 19 August 2002.  Mr Derham did not appear on that occasion and, helpfully for him, the Employment Appeal Tribunal looked at the papers and was troubled as it appeared that there had been this payment.  Therefore, in order to assist Mr Derham, a judgment was delivered explaining the reason for the adjournment and inviting the Respondent to contact ACAS so as to clarify what had been going on; because of course if the case had been settled before the Tribunal hearing something should have happened about it.

5	The specific reason for the adjournment was to enable the Respondent to “make such further enquiries as he thinks fit” and that he should have an opportunity of investigating this one matter of the settlement and providing any further material he thinks appropriate.  None of those steps have been taken.

6	A letter was written on 10 July to the Employment Appeal Tribunal which they have considered in their judgment.  The response of the Respondent to the judgment of the EAT was rather curious.  Having been sent copies of the judgment on 23 August the Respondent wrote on 30 August saying he understood that he was going to be represented in spite of his absence and he wanted an explanation for the absence of representation.  He said that he wanted to appeal to the Court of Appeal.

7	We have no knowledge of that rather curious response to a decision of the Employment Appeal Tribunal designed to assist the Respondent and on 2 December Mr Arbuckle, on behalf of the Registrar, wrote to the Respondent telling him that his appeal had been adjourned, that a transcript of the judgment was sent, that a representative could only represent him if he attended the hearing and could not deal with the matter in his absence, that in fact nothing had happened other than to adjourn the case.  Therefore it was puzzling as to why the request for an appeal was being made.  Then on 23 August Notice of Hearing was sent out and on 16 October some Directions were given.

8	Mr Derham has not attended today but I am told the usher has spoken to him.  He was told that Mr Derham said he had not been told of today’s hearing and would not be here because of his work schedule.  He said that he did not know his options and had no representation.  He said he was surprised to learn about ELAAS representation and he was invited to send any written information.

9	It is quite apparent that the Respondent has taken no advantage of the invitation from the Employment Appeal Tribunal to sort out the factual basis of his appeal, as they invited him to do, and it does appear – unlikely it seems to us – that he knew nothing about ELAAS when he had been sent a letter.  We are surprised that he says that he did not know about today’s hearing and we feel driven to judge that response in the light of the fact that it is quite clear that Mr Derham is a very busy man indeed and finds it very hard to be able to take off time to attend any hearings before the Employment Tribunal or the Employment Appeal Tribunal.  In those circumstances we have decided to proceed with the hearing.

10	The finding of the Tribunal was a finding of payment that was due and essentially there is no appeal from that finding except to say that the claim had been compromised.  But if that claim had been compromised nobody had told the Employment Tribunal about it and so on the information before it at the time it seems to us that the Employment Tribunal came to the only conclusion it could and did not commit any error of law.  If in fact there was evidence that ACAS had settled the case that should have been before the Employment Tribunal at the time.  Of course the appropriate course would have been for Mr Derham to apply for a review after the hearing.  But at this point in time it does not seem to us there was arguable error of law on the part of the Employment Tribunal.  We would go further and say that in fact the evidence before us shows that whilst Mr Callaghan’s solicitor may have given an indication of acceptance there is no evidence before us that the Applicant before the Employment Tribunal had actually agreed to compromise the claim in the particular sum.  It is not clear that it had got to that point in any event.

11	Accordingly, it seems to us, there is no error of law apparent on the decision of the Tribunal.  If it be that money has been paid then that will be a defence to any future claim that there may be for payment of that money.  But on the matter before us, which is to identify any point of law on a Preliminary Hearing capable of argument in full before the Employment Appeal Tribunal, we can discern none.  Therefore the appeal is dismissed at this stage.