Appeal No. EAT/317/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 5th July 1993

	Before

	HIS HONOUR JUDGE J HULL QC

	MR E HAMMOND OBE

	MR J C RAMSAY

MR G R BIRTWISTLE	APPELLANT

EURO-COMPOUND (UK) LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

Appellant in Person

	JUDGE J HULL QC:  In this case Mr Birtwistle, who has acted throughout in person, appeals to us against the decision of the Industrial Tribunal which sat at Manchester on the 20th and 21st January 1993.  He complained to that Tribunal that he had been unfairly dismissed and that there had been improper deductions from his wages and he made a complaint under the Wages Act 1986.  He also complains to us of a failure by the Tribunal to issue witness summonses in respect of certain witnesses.

	In the matter of the wages, it appeared to the Tribunal and to Counsel who appeared for the respondent employers that they did not really understand that complaint at all.  But it did appear to the Tribunal that the complaint related to money paid in lieu of notice.  If that money was truly in lieu of notice, that is to say was damages in lieu of notice, then it was not wages for the purpose of the Wages Act and therefore the Tribunal felt able to deal with it on a very short basis.  They do add:
		"Moreover we were satisfied from the evidence that the respondents had not failed to pay him any wages as that expression is defined in the Act and to which he was legally entitled."

We have not been into all that because we are not trying the appeal, we are seeing whether there is any point of law on which this appeal can properly proceed;  it must be remembered that this Tribunal, when hearing appeals, can only act on points of law.  Mr Birtwistle has assured us that in fact his complaint relates to deductions from wages, properly so called, which were paid to him during his long illness, about which I will say a little in a minute or two, but in those circumstances it seems fairly clear that the Tribunal has, or may have, misunderstood the position.  We cannot say because we have not been into it, but bearing in mind what Mr Birtwistle says about that we think that we should give leave for this appeal to proceed on that issue.  It may well be that Mr Birtwistle is wrong but he is alleging that the Tribunal, having misunderstood the position proceeded to deal with it in a very short way without hearing his evidence about it or considering the submissions he wanted to make.  That is a contention which is capable of being a contention of law, namely that the evidence was misunderstood and was not properly received or was wrongly excluded.

	That is not the only complaint Mr Birtwistle makes.  He complains that the wrong company was named as Respondent, and it had no business to be there;  very confusingly two companies of the same name have existed at different times.  It was pointed out by us to Mr Birtwistle that that was a point which seemed to be without importance because it appeared that whichever was the right company, his complaint was being properly dealt with by the responsible company; and in those circumstances Mr Birtwistle, who I think recognised a weakness in his argument about that, did not proceed any further, and on that he does not have leave to proceed and I do not think wishes to do so.

	He also wishes to appeal against the decision of the Tribunal that he not been unfairly dismissed.  He was gravely injured, so far as we know without any fault on his part, when he was abroad at the end of 1988 and as a result of that not merely suffered dreadful injuries which required long treatment in hospital but also apparently developed a very intractable, long lasting psychological condition, whether it is right to call it an illness I am not sure, but the view of the doctors was that it was a serious psychological condition which prevented him from working and the Company, so far as can be seen, endeavoured to do what was right, and  received many medical reports.  Latterly it is complained, that the Company, from the earlier part of 1991, received no further reports.  But it appears that Mr Birtwistle did not return to work during this time and did not make any attempt to return to work and he has told us that that was on the advice of his doctor or doctors.  He was suing the Company, and he was away from work and continued to be away from work for a total of three years.  Eventually the Company took the bull by the horns and wrote on 14th January 1992 a letter which is set out in the decision.  They refer to the fact that he has been away for three years and in those circumstances they found it right to terminate his employment on account of his illness.

	The Tribunal considered that very carefully.  They heard Mr Eitjes, Managing Director, the only witness for the Respondents and they say they preferred Mr Eitjes' evidence wherever it differed from that of Mr Birtwistle.  They were satisfied with the good faith of the Company and in those circumstances accepted that the dismissal was reasonable.  Companies of course are not charities, they have to work in the business environment.  Mr Birtwistle was a responsible person, they could not carry on indefinitely simply paying his salary, they had to resolve the situation.  No doubt much could be said about that and no doubt much was and the Tribunal decided that it was not an unfair dismissal.  We do not think there are any grounds in law for questioning that decision.

	Mr Birtwistle also tells us that he wants to appeal on the ground that he was severely prejudiced by the Company's failure to allow him to call certain witnesses;  but what it amounts to is that the Tribunal had failed to issue summonses to eight witnesses when Mr Birtwistle applied for them.  We asked Mr Birtwistle whether he had explained to the Tribunal the sort of evidence they would give.  He told us that four of them, at any rate, were senior men, directors of the Respondents, and it can be inferred I suppose from the fact that witness summonses were required for all of them that they did not wish to give evidence.  We have no doubt that in those circumstances the Tribunal would wish to know exactly why it was necessary for these witnesses to come forward and Mr Birtwistle says he hopes they would support his story about the way he had been treated.  

	The decision to issue witness summonses is very definitely one for the discretion of the Tribunal or Court concerned.  The mere speculative hope that somebody from the other side or an unwilling witness will give some useful evidence is not enough to justify granting witness summonses.  If it can be made to appear to the Tribunal that a witness is likely to give useful evidence or is an essential witness on some point, that is a quite different matter, but nothing was laid before the Tribunal (so far as we can see) and nothing has been laid before us to make it appear that these witnesses fell into that category.  We do not think that the Tribunal can be criticised or its decision appealed on the ground that it failed to allow witnesses summonses to issue.  The Tribunal heard Mr Birtwistle himself and if it had appeared to the Tribunal that something was needed to supplement his evidence he could have renewed his application, and we have no doubt it would have been attended to.  We do not feel that there is any point of law there.  

	In the upshot, having heard Mr Birtwistle, we find that the only matter on which his appeal should be allowed to proceed is his claim under the Wages Act.  It may very well appear, when the Company is heard on the appeal, that there is nothing in it.  On the other hand it may appear that Mr Birtwistle has a justified claim which has not yet been understood.  We do wish to ask Mr Birtwistle to co-operate in the preparation of that appeal. It may be that when the documents are looked at patiently and carefully and without all the excitement of a hearing in court, and people can look at them and think about them with the assistance, we hope, of an accountant, and the particular insurance policies if those are relevant, it will become either obvious that Mr Birtwistle is right and should have the money which he claims, or that he is wrong and that the claim is mistaken.  On the face of it it is a claim which one would expect could be dealt with without the appeal proceeding.  The mere fact that leave is given to appeal does not mean of course that it has to come before the Employment Appeal Tribunal as an effective appeal and we hope very much that Mr Birtwistle will approach the Company in a reasonable way to explain his claim and will receive the like courtesy from the Company.  If that happens then it is probable this appeal will not come on, but for the moment we give you leave Mr Birtwistle to proceed with your appeal, so far as it is limited to the claim under the Wages Act.