Appeal No.	 EAT/584/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 November 1996

Before
HIS HONOUR JUDGE D M LEVY QC
MRS J M MATTHIAS
MR R SANDERSON OBE

MR J HARKER	APPELLANT

MRS C BEACH	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR HODKINSON
(Solicitor)
E.L.A.A.S.	

	JUDGE LEVY QC:   Mrs Beach was an employee of Mr Harker as a weekend care assistant. She commenced proceedings in an Industrial Tribunal on 23rd January 1996 for unfair dismissal. There was a hearing before the Industrial Tribunal on 18th April 1996. The Industrial Tribunal unanimously found that she was unfairly dismissed and made a basic award of £369.60, and a compensatory award of £1,033.90.

	By a Notice of Appeal dated 21st May 1996, from this decision Mr Harker appealed. The ground of appeal reads as follows:

“It is my contention that Mrs C Beach was in replacement employment during the period of Compensatory Award and has been untruthful to The Industrial Tribunals in claiming loss of pay. The total amount claimed under the Compensatory Award is disputed that is to say loss of wages, loss of salary while consulting Solicitors and loss of statutory industrial rights. Further under BASIC AWARD the employer would claim tax and NIC deductions as applicable.”

	Mr Hodkinson, who has appeared under the ELAAS scheme for Mr Harker this morning, has asked us to admit fresh evidence to support the claim made by the appellant on this proposed appeal. (This is a preliminary hearing ex parte to see if there is anything in the Notice of Appeal which suggests the appeal should go to a full hearing.)

	The appellant has not, in accordance with the practice direction, to which we have been referred, put on affidavit the fresh evidence; there has therefore been no opportunity for the respondent to consider in any way. That is no explanation for the delay. It seems to us wrong in those circumstances to give leave for fresh evidence to be admitted.

	We have carefully considered the decision of the tribunal below. The facts were before them to find. This is in fact an attempt to get behind the findings of fact which could have been challenged earlier, and in those circumstances, the appeal is doomed to fail without evidence having been adduced below. 

	In these circumstances, it is our unanimous view that the appeal should be dismissed.