Appeal No. EAT/1130/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 January 2002

Before
MR COMMISSIONER HOWELL QC
MR D A C LAMBERT
MRS J M MATTHIAS

JEFF WRAY t/a TRUCK SPRAY NORTHERN	APPELLANT

MR G WHITFIELD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	No appearance or 
representation by or 
on behalf of the Appellant 	

MR COMMISSIONER HOWELL QC

1	This appeal is before us today for a preliminary hearing.  The Appeal Tribunal has received correspondence from the representative on behalf of the Appellant, Mr Jeff Wray, with supporting documents explaining the grounds on which it is sought to pursue an appeal in the case, and we have taken all that material into account, and accept that the Appellant is unable, for practical reasons, to attend before us today.

2	The appeal relates to the Decision of the Thornaby on Tees Employment Tribunal sitting on 6 June 2001, set out in Extended Reasons, sent out to the parties on 31 July 2001.  The proceedings before it were a case of unfair dismissal brought by Mr Gary Whitfield, who had been a panel beater in Mr Wray’s employment, Mr Wray being the Appellant, trading as Truckspray Northern.  

3	The Decision of the Tribunal was that Mr Whitfield had been unfairly dismissed and that there had been unlawful deductions made from wages due to him, resulting in a total Order for compensation of some £8,000.  

4	Against that Decision it is sought to appeal, on behalf of Mr Wray, on one issue only, set out in the Notice of Appeal dated 15 January 2001, submitted by his representative, Mr Griffin, who is described as an Employment Law Consultant.  There is no challenge to the Decision on unfair dismissal, or that there had been some unlawful deduction from wages.  

5	The only challenge is that the Employment Tribunal is alleged to have erred on the basis on which the compensation was assessed, by accepting evidence put forward by Mr Whitfield, the Applicant, as to the level of his weekly gross pay at the material period, in preference to evidence and argument put forward on behalf of the employer at the Tribunal itself, that the true figures were less.  That calculation error, it is contended, resulted in an over-payment of compensation or an over-estimation of the amount payable, by some £2,430, compared with what it should have been, if the Employment Tribunal’s calculation had been based on what the employer contends are the correct figures.  

6	The Notice of Appeal is supplemented by subsequent details from Mr Wray’s accountants, which are said to support the evidence already given at the Tribunal hearing to show that it was the employer’s figures that were correct, rather than the details of pay put forward by the employee, which were those accepted by the Tribunal, when they considered the point.  This, in our judgment, is a pure matter of fact.  It is for the Employment Tribunal to decide such matters of fact, and to decide what weight to place on the evidence before it by one side or the other, when reaching its decision on such issues.  

7	The precise contentions, that are sought to be argued on behalf of Mr Wray by way of this appeal, were all put before the Tribunal in argument, on behalf of the employer, by Mr Griffin, who also appeared and represented the employer at the Tribunal.  The Tribunal’s Decision deals in detail with the contentions put forward, on the figures, and with certain P11 calculations, which had been produced by the accountants and were contended by Mr Griffin to show the correct figures, contrary to the somewhat higher figures put forward on the basis of what were referred to either as payslips or pay envelopes, produced by the Applicant, Mr Whitfield, in evidence.  The Tribunal’s Extended Reasons at paragraphs 8, 9, 10 and 11 deal in detail with the relative contentions and the Tribunal’s conclusions on these issues of fact.  

8	In the end, the Tribunal, having considered these contentions, decided to accept the evidence put forward by Mr Whitfield, in preference to that put forward by Mr Wray.  It is,  material that the Tribunal also, as they were entitled to do, rejected evidence given by Mr Wray on another issue in the case, as to whether he had ever given effective notice to Mr Whitfield to determine his employment at an earlier date than what Mr Whitfield had claimed.  

9	All those, as we say, are matters of fact on which the legislation places the decision in the hands of the Employment Tribunal.  It is not for this Appeal Tribunal to interfere with the decisions of an experienced Employment Tribunal on questions of fact, when it is they that have heard the evidence, and seen the witnesses at a hearing.  

10	The subsequent correspondence from the accountants, which it is sought to introduce, cannot demonstrate an error of law on the part of the Tribunal, if it was not among the evidence before the Tribunal at the time; but in any case it does, so far as we can see, no more than reiterate evidence that was presented to the Tribunal by Mr Griffin, on behalf of Mr Wray, which the Tribunal thought it right not to accept.

11	The Tribunal’s conclusion, and assessment of compensation was, in our judgment, a conclusion open to it as a reasonable Tribunal on the evidence before it.  Its reasons for reaching the amounts awarded are adequately explained in the Statement of Reasons, and we have therefore been unable to see that there is any arguable error of law identified in the Notice of Appeal.  For those reasons we dismiss this appeal.