Appeal No. UKEAT/0428/08/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 2009

Before
HIS HONOUR JUDGE SEROTA QC
(SITTING ALONE)

STEVE WYNNE, PAT WYNNE & SID WYNNE t/a DÉJÀ VU	APPELLANTS

	
MR C DEY 	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellants	No appearance or representation by or on behalf of the Appellants	
For the Respondent	MR C DEY
(The Respondent in Person) 	

SUMMARY

CONTRACT OF EMPLOYMENT:	Whether established
PRACTICE AND PROCEDURE:	Bias, misconduct and procedural irregularity
The Employment Tribunal held that the Claimant was an employee and not a casual worker.  This finding was open to the Employment Tribunal on the facts.  

One of the Respondents asserted that he had been excluded from the Tribunal without good cause, but adduced no evidence to support this contention.  

Appeal dismissed.

HIS HONOUR JUDGE SEROTA QC
Introduction
1.	This is a full hearing of an appeal from a decision of the Employment Tribunal at Abergele, the Employment Judge being Mr Warren, of 30 June 2008.  Judge Warren held, sitting alone, that the Respondent had failed to pay the Claimant’s wages in the sum of £721.65 and failed to supply written terms of his conditions of employment, for which he was awarded two weeks’ salary amounting to £288.66.

2.	The matter was referred to a full hearing by HHJ Burke QC on 21 October 2008.  Unusually Judge Burke had said in his note on the sift that he was concerned that the Employment Judge may not have considered the Claimant was an employee but only entitled to hourly pay for the hours worked, and he would also like to know more about Mr Wynne being excluded from the Tribunal and that “There may be nothing in this appeal but the only way to tease out whether there is anything is at a preliminary hearing”.

3.	Judge Burke did not direct that there should be a preliminary hearing but directed that there should be a full hearing, a fast-track hearing, which is why we are here today.  Mr Dey is present but no one of the three original Respondents; Mr Steve Wynne, Mrs Pat Wynne and Mr Sid Wynne, are present.  I have waited until 11.00am.  I am told that Mr and Mrs Wynne senior are currently in Australia and that their son is not here and he has not been in touch with the Tribunal.  In those circumstances, having read all the papers in the case, I feel justified in proceeding in the absence of the Respondent and I shall give a short judgment.

4.	The Respondents own what is described as a nightclub or sports bar in Denby in North Wales known as Déjà Vu.  In December of 2006 Mr Dey began to work there.  His hours varied from week to week but he was doing something like 45 hours each week and was paid approximately £6 per hour.  He was paid in cash with a wage slip each Sunday, and depending on the hours he worked, his hours, as found by the Employment Judge, varied between £60 and £175 per week.

5.	He was on many occasions left in charge of Déjà Vu; the staff would take issues to him and he would delegate bar duties, he was responsible for stock control, he would attend early before the club opened to prepare the bar and he would also prepare the lists for ordering from the brewery.

6.	Unfortunately on 10 May 2007 there was a fire at Déjà Vu and it was uncertain when it would reopen.  The Claimant asked for wages while the Déjà Vu club was shut but he was told this was being dealt with by insurers.  It subsequently transpired that the Respondents’ insurers did not cover reimbursement of Mr Dey’s wages.  He believed he would be re-employed when the club reopened, as it was in June, and he worked there until August but relations between himself and the Wynnes appeared to have deteriorated, his hours were reduced and he left.

7.	He never received written terms of his employment.  The Respondents’ case was that his employment was entirely casual; that explained why there was no written contract, and he worked on entirely an “as-and-when” basis.

8.	I have to say that when looking at the Decision of the Employment Tribunal it is extremely brief and the Employment Judge has not set out the principles of law that he was applying.  He has simply said at paragraph 10:
“10.	The test for whether the claimant is an employee or casual labour is involved - there are a number of strands to it.  

11. 	I have concluded that he was an employee.”

9.	This is not wholly satisfactory.  However, the test is relatively easy to state, albeit less easy to apply, and I have to assume that the Employment Judge was well aware of what the criteria are for determining if someone is in employment or is in casual labour, and also as to when someone works irregular hours and irregular days whether he is to be regarded as an employee or whether he is simply employed under a succession of unrelated and “un-joined up” contracts of service or indeed contracts of employment.

10.	The Employment Judge concluded that Mr Dey worked for a period of five months for the Respondents before the fire, he worked four or five days a week every week, he was treated if not as a manager, as a supervisor, rather than staff and left in charge of the bar.  He was a regular worker who took leave but booked this in advance with the Wynnes.  He was paid every Sunday with a wage slip.  Had it not been for the fire he could reasonably have expected the situation to continue.

11.	That was a finding that was open to the Employment Judge to make on the evidence before him, both parties being unrepresented, and the case was no doubt presented in a somewhat informal manner.

12.	I have set out earlier in this judgment the facts found by the Employment Judge as to the nature of the Claimant’s work.  In my view, having carefully considered what the Respondents have said in the Notice of Appeal, I can find no error of law and that part of the Notice of Appeal fails.

13.	The next matter, which is raised in the Notice of Appeal, is this.  It is said that Mr J S Wynne was ordered out of the courtroom for shaking his head while Mr Dey was giving evidence:  this was only because he could not believe the untruths Mr Dey was saying.  I have no further information about this save that Mr Dey says that “Mr Wynne was ordered out of the hearing after warnings but after I had given the evidence”.

14.	I am quite satisfied that an Employment Judge would not without good reason order a party out of the hearing chamber.  I have been provided with no further evidence by the Respondents and in the circumstances I cannot regard the decision to exclude Mr Wynne as being a procedural irregularity, and even if it were, in my opinion it would not be sufficient to justify setting aside the judgment.

15.	I should also, I think, make the following points.  It is asserted that Mr Dey missed three weeks’ wages not five and copies of wage records were sent in.  However, this is a finding that was made on the evidence before the Employment Tribunal and cannot be reversed now.  It is also asserted that after the fire “Mr Dey went to work for someone else and when he was no longer required there he returned to us”.  This is a matter that was for the Employment Tribunal to decide and the Employment Tribunal, as I have noted, found that he should have been remunerated by the Respondent.

16.	It is also asserted that Mr Dey took numerous weekends off during their busier times and went on holiday without giving notice, and returned late.  That is contrary to the findings made by the Employment Tribunal.

17.	In those circumstances the appeal must be dismissed.