Appeal No.	 EAT/277/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 June 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR E HAMMOND OBE
MR B M WARMAN

PICA CERES LTD	APPELLANTS

MR A WILDE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR GALBERG
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

	JUDGE PETER CLARK:     This was a claim for breach of contract brought by the Applicant employee, Mr Wilde, against his former employer Pica Ceres Ltd, the Respondent.  The matter came before the London (North) Industrial Tribunal on 1 October 1996.  His claim was upheld in part for the Summary Reasons given by the Tribunal on 28 October 1996, and subsequent Extended Reasons dated 9 January 1997.  Now there is an appeal by the Respondent against that decision.  We take the facts from the Industrial Tribunal’s Extended Reasons.

Background

	The applicant commenced employment with Pica Computing Services Ltd (Computing) in October 1986.  After one year’s service he joined Computing’s non-contributory staff pension scheme.

	In June 1992 Computing went into voluntary liquidation and a new company, Pica Europa Ltd (Europa) was formed to take over the business of computing.  The Applicant’s employment was transferred to Europa.

	On 22 December 1993 Europa went into liquidation and the Applicant ceased his employment.  

	The Respondent company rose from the ashes of Europa and the Applicant worked for the Respondent on a free lance basis from 10 January until 1 March 1994.  On 1 March 1994 he became employed by the Respondent.

	At a meeting held on 5 May 1995 the Applicant was informed that his employment would terminate on 19 May 1995.  He was entitled to one month’s contractual notice of termination, and accordingly he was entitled to be paid until 5 June 1995.

The Claims

	The Applicant made the following claims:

(1)  Arrears of salary, and pay in lieu of notice, for the period March to 5 June 1995.

(2)  Arrears of pension contributions.

(3)  Unpaid overtime and holiday pay.

The Industrial Tribunal Decision

(1)  The Tribunal found that the Respondent had failed to pay a total of £3,724.99 in salary, plus 1½ weeks pay in lieu of notice, totalling £487.

(2)  The Tribunal accepted the Applicant’s evidence that he was entitled to the benefit of pension contributions by Computing and Europa.  It rejected the Respondent’s case that such payments were at the discretion of the employer.  When the Applicant accepted employment with the Respondent the Tribunal found that it was agreed, and the Applicant took employment on the condition that, the Respondent would make good the previous company’s arrears of pension contributions.  Accordingly he was entitled to arrears in the sum set out in the Tribunal’s reasons.

(3)  The claims for overtime pay and holiday pay were dismissed.

The Appeal

	Today Mr Galberg, who represents the Respondent under ELAAS pro bono scheme takes two points.

	The first is in relation to the Tribunal’s finding at paragraph 7 of its Extended Reasons.

	There was a factual dispute between the Applicant and Mr Whalley of the company.  The Applicant alleged that Mr Whalley had made him a specific promise to make good the failure of Europa to pay company contributions into the pension scheme, and also contributions on the Applicant’s behalf for December 1993 and that this promise was a consideration for the Applicant’s acceptance of the offer of employment with the Respondent on 1 March 1994.

	That contention was denied by Mr Whalley.  The Tribunal preferred the Applicant’s evidence on that point and proceeded to award damages of £1,355.97 in respect of unpaid contributions.

	The point taken by Mr Galberg is that in reaching that critical finding of fact the Industrial Tribunal took into account evidence given by Mr Joselyn, who was called on behalf of the Applicant, but that in doing so the Tribunal misunderstood Mr Joselyn’s evidence and had they correctly understood it, that may have had an influence on their finding as to the dispute between the Applicant and Mr Whalley.  In support of that contention we have been referred to a letter written by Mr Joselyn to Mr Whalley after the Tribunal hearing as to the position as he understood it.

	We are unimpressed by this point.  We are not satisfied that the Tribunal misunderstood Mr Joselyn’s evidence.  We do not propose to direct that the Chairman’s notes be obtained for what is, in effect, a “fishing expedition” to provide a basis for appeal.  It seems to us that this was a straightforward issue of fact.  Which witness did the Tribunal believe?  The Industrial Tribunal is the fact-finding body and we can see no point of law raised in this aspect.

	The second point relates to paragraphs 4 and 5 of the Extended Reasons.  The Industrial Tribunal found, and this is not in dispute, that there were underpayments of salary for the period March until 5 June 1995.

	However, it was the Respondent’s case that they were entitled to set off sums which had been paid over and above his entitlement to the Applicant before March 1995.  In support of that case apparently a number of cheque stubs were produced to the Industrial Tribunal for the period prior to March 1995.  In addition, it was said that the Respondent had discharged a bill which the Applicant owed to a garage; that bill was produced.

	At paragraph 5 of their reasons the Tribunal say this:

“Mr Whalley claims that payments have been made to Mr Wilde in respect of his claim.  The Respondents have produced no evidence of the amounts of these payments.  Such sums as the Respondents can prove (or Mr Wilde accepts) were paid in this regard can of course be set off against Mr Wilde’s claim.”

	We read that paragraph in conjunction with paragraph 8 of the reasons where, having dealt with the question of interest, the Tribunal say this:

“It is possible that figures for the amounts due are even now in dispute.  If so the parties are asked to say so and to state what in their view the true figures are.  This does not mean that the parties are entitled to depart from the evidence given at the Tribunal hearing.”

	We are told that following the Tribunal hearing an application was made by Mr Whalley, on behalf of the Respondent, for a review of the Tribunal’s decision and that application is currently being considered and it is anticipated that a review hearing will be held later in the year.

	The point of law which Mr Galberg seeks to argue at a full hearing before the Employment Appeal Tribunal is that the Tribunal made a finding which can be categorised as perverse when they said that the Respondents had produced no evidence of the amounts of these payments.  He submits that plainly there was evidence before the Tribunal which they do not appear to have considered.  

	We are not satisfied that any point of law is raised in relation to this matter, but in any event, we think that the Tribunal anticipated that the parties may come back on this point and left the door open for a review application.  That, it seems to us, is the correct course to pursue in this case.

	In these circumstances we have reached the conclusion that there is no arguable point or points of law to go to a full appeal tribunal hearing and accordingly this appeal is dismissed.