Appeal No.	 EAT/186/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 April 1999

Before
 THE HONOURABLE MR JUSTICE LINDSAY
LORD DAVIES OF COITY CBE
MRS R A VICKERS

MR J A WAUGH & MR I C COX	APPELLANTS

GLENDALE INDUSTRIES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MISS M TETHER
(of Counsel)
Messrs Thompsons
Solicitors
Percy House
Percy Street
Newcastle-upon-Tyne
NE1 4QW	

	MR JUSTICE LINDSAY:	This case had come on for hearing below before Mr J R Barton, as Chairman, sitting alone, on 25th November 1998. So far as relevant, his decision was that:

“(3)	The complaints made by Mr Waugh and Mr Cox that they have suffered unlawful deductions from wages are not made out and are accordingly dismissed.
(4)	There will be no order as to costs.”

Now the particular form of unlawful deduction from wages which was alleged was that the employer, Glendale, had not paid bonus during periods of absence through sickness. The appeal that is mounted by Miss Tether on behalf of Mr Waugh and Mr Cox, broadly speaking, can be divided into three. The first head of her argument is, looking at the Notice of Appeal, that the Chairman decided to sit alone without considering the provisions of Section 4(5) of the 1996 Act. She says that this was a case that really should have been before a full tribunal of three, rather than before a Chairman alone. But the way the argument is put today is not quite as it was in the Notice of Appeal - namely, that the Chairman failed to consider Section 4(5) - but rather is that the parties had no inkling before they arrived on the day that it was to be a Chairman alone; that the fact that, as they arrived, it was only the Chairman who was provided to hear the case must have indicated that a decision had already been taken that it was appropriate for a Chairman to sit alone, but that the parties, not having been told that that was a matter for decision, had had no opportunity to address, one way or another, that particular question. Attention is drawn in the skeleton argument to the case of Sogbetun v London Borough of Hackney [1998] IRLR 676, which according to the argument in that skeleton, suggests that the Chairman should not decide to sit alone unless he has first exercised his discretion in accordance with section 4(5). Well, there is no material at all in front of us that the Chairman had not exercised his discretion and quite how the appellant will mount that argument remains to be seen. But the argument that has developed today is rather different to Sogbetun. We cannot say that there is no point of law involved. If a decision is to be taken, even before the hearing, that the matter is for a Chairman alone, it is inconvenient, to say the least, that the parties shall not have been warned that that is the case and have had an opportunity to address it one way or another. We allow point, therefore, to go forward. It needs to be said, however, that there is unattractive aspect to the point, because neither the employer nor the employees apparently addressed the Chairman on the point on the day. Why should not Mr Waugh and Mr Cox have then raised the argument that it was not appropriate that the Chairman alone should hear the case? Miss Tether says that plainly it was a fait accompli by then, but that, of itself, would not have debarred either side from arguing that it was not appropriate, given the way the case was going to be argued, that it should be before the Chairman alone. That is a difficulty which the appellants will have to grapple with but we do not bar that first point from going to a full hearing.

	The second main point is one of construction of the contractual arrangements made between Glendale Industries Ltd, or its predecessor, and Mr Waugh and Mr Cox. We were in some difficulty as to that, because in the course of his judgment the Chairman refers to seven or eight particular references in the documents put in front of him in the course of concluding, as he did, as to quite what the contract provided. We did not have those references open to us until this morning. It transpires that on 23rd April 1999 the Employment Appeal Tribunal had received the documents, but, they did not come through to us until this morning. Manifestly, if one is dealing the with a construction of a contract, one needs to see its terms. It was difficult for us, before we heard Miss Tether, to take any informed view as to whether the Chairman had or had not erred in law. However, Miss Tether has taken us, at some speed, to many of the documents to which the Chairman referred, and, in particular, to Appendix B to the National Joint Council for Local Authorities Services (Manual Workers), Pay and Productivity, Self-Financing, Lead-in Payment document which, at Clause 7(b) says:

“In respect of absence on account of sickness or industrial disease or accident as defined in paragraph 25 a bonus earner shall be entitled as part of normal earnings to a sum equal to his/her average bonus earnings. [Then there is a provision about how that is to be determined.]”

Miss Tether’s argument is that that, perhaps more than other single provision, points to an entitlement to bonus notwithstanding an absence through sickness.

	We are not in a position to say that there is no arguable point of law in relation to the construction of the contractual arrangements. As I have mentioned, given more time we might have been able to come to a better informed view of precisely in what respect, if any, the Chairman was wrong in law or incontestably right. I do not think that at the speed with which we have had to approach the matter we can deal with it as fully as one would ordinarily like to, but I am satisfied that each of us feels that we cannot be sure that there is no arguable point of law and to that extent we ought to let the matter go forward on that point also.

	The third of the arguments that Miss Tether has advanced depends upon the case Kent Management Services v Butterfield and what is normally expected. This she describes as a fall-back position. It was dealt with by the Chairman; although, in fact, he had not been referred by the parties to the case, he referred to it himself. It is only a fall-back position. It seems to us not inappropriate that if the other matters are going forward, it too should go forward. We let that matter to go forward also.

	So far as concerns the full hearing, the directions that we give are that not less than 10 days before the appointed day skeleton arguments should not only be exchanged between the parties, but sent to the Employment Appeal Tribunal, to arrive not later than 10 days before the hearing. That the Category of case should be Category B. So far as concerns authorities that are to be relied upon, it is difficult for the legal authorities adequately to be considered ahead of the hearing, which is plainly desirable, unless photocopies are supplied to the Employment Appeal Tribunal for sending on to the members who are going to hear the matter. Accordingly, not less than 10 days before the hearing, photocopies of authorities to be relied upon should also be supplied to the Employment Appeal Tribunal. It is obviously desirable that the parties should consult with each other as to what authorities are likely to be needed, so that rather than having two separate bundles of authorities, there should be simply one common bundle of authorities. So far as concerns the estimate of time, we will ask Miss Tether what view she has.

Miss Tether:	Sir, I would have thought ½ a day would be appropriate for the entire hearing. My submissions, I would imagine, would take about an hour or a little under.

MR JUSTICE LINDSAY:	We will say ½ a day.