Appeal No. EAT/109/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 February 1994

	Before

	THE HONOURABLE MR JUSTICE WATERHOUSE

	MRS R CHAPMAN

	MRS P TURNER OBE

MR R JENKINS	APPELLANT

ROADWAYS INTERNATIONAL HAULIERS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

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

	

	MR JUSTICE WATERHOUSE:  This is the Preliminary Hearing of an intended appeal against the decision of an Industrial Tribunal sitting at Birmingham on 11 November 1992.  The unanimous decision of the Tribunal was that the Appellant's complaint should be dismissed.  The Tribunal ordered also that the Appellant should pay to the Respondents £150 on account of their costs.

	The first matter that arises in relation to this proposed appeal is that today the Appeal Tribunal received, first of all, a telephone call and then a facsimile message from the Appellant requesting an adjournment.  In the facsimile message it is said that the Appellant had been given antibiotics for a heavy cold plus a skin disorder and he says that he cannot send a proper doctor's note.  The Appellant refers also to having put money aside for the coach fare etc to make the journey to London.  Accompanying the facsimile message is a copy of a prescription for antibiotics without any doctor's comment.  It must be added that no indication is given of the nature of the skin disorder that the Appellant is suffering from and we are not clear whether the prescription relates to the skin disorder or to the cold.  Unhappily, there is a history of requests for adjournments in the background of this case and we are not persuaded that the Appellant is unable to attend personally to pursue the matter, having been given proper notice of the hearing.  Certainly a heavy cold, which apparently came on during Saturday evening, is not a justification that one would normally accept for non-appearance on the following Monday at a Court hearing.  Moreover, we are given no information whatsoever about the skin disorder and do not even know whether it is simply a temporary disorder or one that afflicts the Appellant habitually.

	The purpose of a preliminary hearing is to seek to ascertain whether or not there is any arguable point, essentially a point of law, which should appropriately be heard in full by the Appeal Tribunal with argument from both sides.  For that purpose it is quite frequently helpful to hear the views of the Appellant either personally or through Counsel or Solicitor, in order to identify, if possible, a point of law raised by the grounds of appeal.  Each one of us, however, in the present case is fully satisfied that no amount of argument, whether by Counsel or by the Appellant in person, could persuade us that there is a point of law raised by the proposed appeal.

	The brief facts of the case are that originally, in August 1992, the Appellant made a complaint in the following terms:

		"The reasons for my dismissal, plus holiday incorrect, being expected to do work that is incorrect."

	When the Appellant appeared before the Industrial Tribunal below, on 11 November 1992, he sought an adjournment of the hearing for reasons which are fully spelt out in the Full Reasons of the Tribunal issued by the Chairman on 17 December 1992.  The Tribunal considered in depth the basis of the request for an adjournment and that involved consideration of a proposed amendment to the Originating Application by adding a complaint that the Respondents had made unlawful deductions from the Appellant's wages in that they had failed to pay him a weekly allowance of £140 for journeys to Italy and other parts of the continent.

	In paragraph 2 of the Statement of Reasons the Chairman dealt with the complaint of unlawful deductions and reached the conclusion that the claim was in any event statute barred because the latest date to which it could possibly relate was 8 May 1992, whereas the Originating Application had not been issued until 22 August 1992.  The view of the Tribunal therefore was that it would be wrong to allow the amendment at that late stage, which would have had the effect of introducing a completely fresh cause of action when that cause of action had been statute barred, not only when the Originating Application was presented but even at the time when the Appellant claimed that he thought that he had started the proceedings through ACAS.

	It is clear from the history related in the Full Reasons of the Tribunal that, having dealt with the proposed amendment, the only viable claim left for the Appellant was his holiday pay claim.  After examining the figures over the comparatively short period of the Appellant's employment by the Respondents, the Tribunal concluded that his only net claim, after making allowance for what he had been paid, was for 71/2 days holiday with pay at the rate of £20 per day.  The evidence was that the Appellant had received £30 per day basic pay for those days on his dismissal, but he was seeking to put forward the assertion that he was entitled to £140 night out allowance in the calculation of holiday pay, even though, when he was on holiday, he was not actually having to spend time away from home on business.  The £20 per day in the calculation derives from that figure of £140 per week. 

	With great politeness the Tribunal went into this matter in considerable detail and they set out their findings of fact in a series of sub-paragraphs in paragraph 10 of the Statement of Reasons, having considered the merits of that application under the Wages Act 1986.  For reasons which the Tribunal found overwhelming and which this Appeal Tribunal would itself find overwhelming, if it were concerned with the facts, the Tribunal below rejected the suggestion by the Appellant that he was entitled to £20 per day on top of his basic pay by way of holiday pay.  They said at paragraph 11:

		"We are entirely satisfied that Mr Jenkins in common with the other drivers in the respondents' employment, was employed on a basic wage of £150 a week.  In addition, when he went to Italy he received a night out allowance at £140 a week.  If he went to Germany the night out allowance was £100 a week and if he did not go abroad he was not entitled to a night out allowance at all.  He was not employed on the basis that £140 would be paid come what may."

That finding was fully sufficient to decide what was left of the Appellant's case and the Tribunal found that there had been no unlawful deduction from his wages.  

	There cannot be any sustainable complaint about the way in which the Tribunal below dealt with the application for an adjournment before the hearing began.  Moreover, it cannot be suggested that their findings in relation to the parts of the proposed claim that were statute barred were wrong in law and that is not suggested in any document put before the Appeal Tribunal in relation to the appeal.  Finally, the remaining holiday pay issue, which has been briefly summarised, was resolved as a decision of fact.  There is no point of law that can be raised in support of the proposed appeal against that part of the decision.

	As for the question of costs, that was dealt with at the conclusion of the Reasons by the Chairman.  The award of costs was in the discretion of the Tribunal once it took the view that the Appellant's conduct had been frivolous, vexatious or otherwise unreasonable.  It was open to the Tribunal to make that finding as a pre-condition to an award of costs.  The award of £150 was modest.  There is no ground therefore upon which that last part of the decision of the Tribunal below can be appealed successfully and the appeal as a whole must be dismissed.