Appeal No.	 EAT/426/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 December 1998

Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY CBE
MISS A MACKIE OBE

MR R F SMOCK T/A CONISTON COACH HIRE	APPELLANT

MR R WILSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R SMOCK
Appellant in person	

	JUDGE PETER CLARK:	This appeal came before a differently constituted division of the Employment Appeal Tribunal on 5 June 1998.  The matter was adjourned on the basis that each party would lodge affidavit evidence and the Chairman’s notes of evidence be obtained.  We refer to the judgment which I gave on that occasion for the background to this dispute.

	The Appellant Mr Smock complied with that order and filed an affidavit sworn on 17 June 1998.  The Respondent, Mr Wilson, has not filed an affidavit.  By letter dated 7 August 1998 he was informed that unless an affidavit was received by the date of this reconvened preliminary hearing, we would consider making an order debarring him from defending under Rule 26 of the EAT Rules and then proceed to a full hearing.  He has disregarded that warning and accordingly we shall make the debarring order and proceed to hear the full appeal.

	We shall admit the further evidence contained in and exhibited to the Appellant’s affidavit on the grounds that it could not be obtained with reasonable diligence for use at the Employment Tribunal, first because the Appellant was unable to attend the hearing due to illness and secondly because there was no indication on the face of the pleadings that the Respondent was alleging he took one week’s holiday in June 1997 on the understanding that he would be paid for that week and was not paid by the Appellant.  The evidence filed by the Appellant indicates that he did work throughout June and was paid for that period.  Further, and in the absence of conflicting affidavit evidence from the Respondent, the Appellant’s affidavit evidence appears to be credible and would, we think, have had an important influence on the result of the case below.  It seriously undermines the oral evidence given before the Employment Tribunal by the Respondent.

	The new evidence having been admitted before us we shall, for the purposes of disposing of the appeal, exercise the power of the Employment Tribunal granted to this Employment Appeal Tribunal by the provisions of Section 35(1)(a) of the Employment Tribunal Act 1996 , to review the Chairman’s decision of  our own motion under Rule 11 of the Employment Tribunal Rules of Procedure and having done so, in the light of the new evidence, we shall accede to Mr Smock’s application and set aside the order made by the Ashford Tribunal and having done so, we order that the Respondent’s complaint be dismissed.