Appeal No.	 EAT/279/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 June 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR A C BLYGHTON
MR P A L PARKER CBE

MR S K AJIKAWO	APPELLANT

MS R HRISTOVA	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR BARKLEM
(of Counsel)
APPEARING UNDER THE 
EMPLOYMENT LAW APPEAL
ADVICE SCHEME
(ELAAS)

	JUDGE PETER CLARK:	By an Originating Application presented on 13th March 1998, the Applicant, Ms Hristova, complained of breach of contract and unlawful deductions from wages against the Respondent by whom she claimed to have been employed from 3rd November to 17th December 1997.  She alleged that two paycheques had been dishonoured and that she was entitled to three months pay in lieu of notice on dismissal by the Respondent.  The claim was resisted.

1	The matter came before a Chairman, Mr J N Leonard, sitting alone at the Stratford Employment Tribunal on 17th August 1998.  By a decision with extended reasons dated 26th August 1998 (the liability decision), the Chairman rejected the Respondent’s case that the Applicant had obtained the employment by false pretences, found that her salary cheques had been dishonoured and held that the Applicant was entitled to one weeks pay in lieu of notice.  The issue of remedy was adjourned to a date to be fixed.  The Respondent did not then appeal against the liability decision nor did he seek a review.

2	The remedies hearing took place on 18th December 1998.  The Applicant appeared in person, the Respondent did not appear and was not represented.  By a further decision (the remedies decision), with summary reasons dated 21st December 1998, the Chairman held that the Applicant was entitled to wages of £2,596.15 on a gross basis, since the Respondent had not made any payments of tax or National Insurance on her behalf, together with one weeks pay, £346.15, in lieu of notice.

3	By a letter dated 29th December 1998, the Respondent applied for a review of the remedies decision.  He was asked by letter from the Tribunal dated 4th January 1999 why he arrived late for the remedies hearing and what was wrong with the remedies decision.  By letter of 12th January 1999, he explained that he was late because his wife was indisposed and he had to take his young daughter to school.  He did not state the grounds for challenging the remedies decision.  As to the merits of his application, prompted by a further letter from the Tribunal dated 13th January, the Respondent wrote on 26th January, repeating his earlier contention raised at the liability hearing that he had been misled into employing the Applicant.  

4	On 28th January 1999, the Chairman dismissed the review application on the ground that the Respondent had raised no challenge to the basis for the remedies decision.  The challenge was directed to the liability decision.  Against the refusal to order a review of the remedies decision, the Appellant has appealed to this Tribunal.  Today he is represented by Mr Barklem of Counsel under the ELAAS pro bono scheme.  

5	Mr Barklem accepts on behalf of the Respondent that there are no sustainable grounds in law for appealing against the refusal of the review application in relation to the remedies decision.  However, he makes two applications.  The first is that this preliminary hearing should be adjourned so that the Appellant can properly formulate amended grounds of appeal directed to the liability decision.  This is a case in which the Applicant’s wages cheques have been dishonoured.  It seems on the face of it that the Respondent is seeking to delay payment by pursuing this appeal.  In these circumstances we shall not grant the adjournment.

6	Secondly, Mr Barkham applies for leave to amend the Notice of Appeal to add grounds, as yet unspecified, challenging the original liability decision.  He makes a consequential application for leave to appeal out of time against that liability decision.  We refuse that application also.  We bear in mind that guidance given by Mr Justice Mummery in United Arab Emirates v Abdelghafar (1995) ICR 65, and we can see no good reason why the appeal against the liability decision was not made in time.  

7	The application is further weakened by the circumstances of another case brought by a fellow employee of the Applicant, Mr Oki, against the Respondent.  We see from a judgment given by Mr Justice Lindsay on behalf of this Tribunal in an appeal brought by Mr Ajikawo EAT/1010/98, that in the Oki case, the allegation was that wage cheques had been dishonoured.  That matter came before a Chairman, Mrs Mason sitting at Stratford.  By a decision dated 24th June 1998, the Chairman ordered the Respondent to pay the sum of £2,292.84 to the Applicant Mr Oki.  The Respondent then asked for a review of that decision on 8th July 1998.  That application was refused on 23rd July and on the same day, he signed a Notice of Appeal against the refusal by Mrs Mason to review her earlier decision.  That appeal was dismissed.

8	It follows that when Mr Leonard gave his decision in this case on liability, on 26th August 1998, the Respondent was well aware of the provisions for appeal to this Tribunal.  In these circumstances, the appeal as currently constituted being unsustainable and we having refused leave to amend the grounds of appeal, the appeal must be dismissed.