Appeal No.	 EAT/243/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 May 1999

Before
HIS HONOUR JUDGE HAROLD WILSON
MR R SANDERSON OBE
MR J A SCOULLER

MR R PENMAN	APPELLANT

(1) MISS M A EDGE (2) MGM PHOTOGRAPHY LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MS J BROWN
(of Counsel)
ELAAS	

	JUDGE HAROLD WILSON:	This is the preliminary hearing of an application by the appellant to appeal against the refusal of the Employment Tribunal to grant him a review of the decision made on 22nd May 1998 which had gone against him. On that occasion he had not appeared and had failed to do so because he had made it plain that he had other more important things, in his view, to occupy his attention. The tribunal had, understandably, not accepted that as a good reason for adjourning the proceedings and they had continued with the hearing.

	The issue between the parties was whether or not the current appellant was the employer of the applicant in the original application. The appellant said that she was in fact employed by a limited liability company, MGM Photography Ltd. There was a great deal of information before the tribunal at its original hearing to do with that matter. The only document not before the tribunal when it made its decision, but placed before it on the application for a review, was a letter from the Inland Revenue. We have seen that letter and we have heard what Ms Brown, on behalf of the appellant, has had to say about it. We have no hesitation in finding that the letter itself is merely confirmatory of the information which the tribunal had before it in October and which it was entitled to take into account.

	The tribunal’s findings were delivered in summary form following the hearing on 18th May 1998. There was no application for extended reasons until after the refusal of the review on 22nd October 1998.

	We have therefore considered the summary reasons and also compared them with the extended reasons which the tribunal without more delivered very long after the time limit had expired. Paragraphs 2 and 3 of the summary reasons stated:

“2.	Having reviewed all the evidence we find that the applicant was employed. She commenced employment with Mr Penman personally. He gave her her orders. She worked to those orders and attended for work at the time and place upon Mr Penman’s instruction. There was a mutuality of obligation. Following the commencement of her employment with Mr Penman he advised her that she would be employed on a self-employed commission basis. He requested her to sign a statement to this effect, which she did only because it was a condition of her being paid wages that week. However, the applicant referred the matter to her accountant and having done so, advised Mr Penman that he was not within his rights to treat her as self-employed and insisted that she be treated as a P.A.Y.E. employee. Mr Penman agreed that she would be treated as a P.A.Y.E. employee. In fact, she was. She received, albeit on an irregular basis, itemised pay statements showing deductions of tax made. Having viewed the picture as a whole, we determine that the relationship between the applicant and Mr Penman was one of employer and employee. Mr Penman never informed the applicant that the identity of her employer had changed. She did not receive a contract of employment showing the true name of her employer. The only document she received were pay slips which were in the name of “The Make-Over Studio”. Mr Penman trades in the name of “The Make-Over Studio.
3.	From the commencement of her employment the applicant had difficulties in obtaining her correct wages from the first respondent [Mr Penman]. She was fobbed off by him on a number of occasions. He told her that she would be paid eventually. At times when she asked him why she was not being paid the correct rate he became abusive towards her. The applicant was frightened of the respondent and was frightened of the consequences if she pursued her claim for outstanding wages more vigorously. She raised the matter with the managers within the shop but they felt the same, they were unable to pursue the matter with the first respondent [Mr Penman]. The applicant received extremely irregular payments from the respondent and did not at all times receive itemised pay statements in relation to the payments she did receive …”

The summary reasons, set out in commendable detail, the basis upon which the claim was itemised and quantified by the tribunal in favour of the applicant.

	Those are all matters of fact. Close perusal of the amplified reasons discloses no conflict between the two. Moreover, the material available to the tribunal, upon which it based its summary reasons, justified those conclusions as being open to a reasonable tribunal properly directing itself about the matters with which it should be concerned.

	This tribunal has no power to go behind findings of fact made by an Employment Tribunal. The fact that the proposed appellant wishes to put forward a different view of the facts is something which was open to him at the date of the hearing where he was absent, because he thought other things were more important. We are told today that he did not realise the significance of the tribunal proceedings. We find that impossible to accept from somebody who is a businessman on his own account. 

In our view, there were no errors of law. We are not entitled to go behind the findings of fact. It is not merely a question of no prospect of success in this case. In our view, the application is wholly without merit and must dismissed.