Appeal No.	 EAT/744/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
HIS HONOUR JUDGE H J BYRT QC
MR R JACKSON
MR A E R MANNERS

SONICO BOUTIQUES LTD	APPELLANT

MR V PAL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant 	Mr A Soni
Director
Sonico Boutiques Ltd
19 Lombard Road
Merton
London SW19 3RH	

	JUDGE JOHN BYRT QC:		This is a preliminary hearing in an appeal against a decision promulgated on 18 March 1998 of an Employment Tribunal sitting at London North.  By that decision the Tribunal held that the employee, Mr Pal had been unfairly dismissed and had had an unlawful deduction from his wages in respect of accrued holiday pay.  The employers appeal.

	The facts as set out in the Tribunal’s reasons are as follows.  Mr Pal worked for the Appellants between 1984 and 1987, and again, after a short break, between November 1988 and July 1997 as a sales assistant.  The Respondents own a number of shops throughout London.

	On 27 June 1997, Mr Pal was working in a shop in Oxford Street when he had an altercation with Mr Arun, that is Arun Soni, the son of Mr R K Soni. Mr Pal complained about Mr Soni being so sarcastic.  Thereafter he thought no more about the incident, considering it past history.  Mr Pal’s evidence, accepted by the Tribunal, was that on 1 July 1997, he was asked or told by Arun Soni to go to the company’s warehouse at Merton to see his father.  He went, and there met Mr Soni senior and another director.  Mr Soni senior told Mr Pal that he had received a complaint from a colleague that he had not been working hard and he was told to take two weeks holiday.  On being told that, Mr Pal said, “why did you want me to come to the warehouse?”   Mr Soni’s answer was that he had heard that he, Mr Pal had had an argument with Arun, and Arun was not very happy about it.  So again, Mr Soni senior said, “take the two weeks holiday and then come back again”.  As he was leaving, he was told that he should apologise to Arun for the remarks made on 27 June.

	On the next day, 2 July, Mr Pal went into work and apologised to Arun, but notwithstanding that apology, Arun told him to return again to the warehouse at Merton to see his father, and Mr Pal went.  At the warehouse, Mr Soni senior said that he was terminating Mr Pal’s employment, but that in two weeks’ time he would be at liberty to ring him up to see whether there was any further work available for him.  He was also told that Arun Soni and his daughter were now in charge of the business.

	On that particular occasion, he had a piece of paper put in front of him by Mr Soni senior saying that his contract was being terminated by consent and that he was receiving £500 in full and final settlement of all claims against Sonico.  He signed the document, took the £500 and then went home.  Two weeks later he telephoned Mr Soni senior only to be told there was no further work for him.

	The Tribunal in its extended reasons say they had to piece together the evidence they had heard from both sides and decide what had happened.  They stressed the difficulties because there was a complete conflict in the factual accounts.  They then set out their findings of fact, and ended by saying that they preferred the evidence of Mr Pal to that of Mr Arun Soni and Mr Soni senior.  They accepted his account of events.  

	They then referred to the law.  The first point they made was that the alleged agreement to settle was void, under section 203 of the Employment Rights Act because it sought to oust the jurisdiction of the Employment Tribunal for determining matters relating to the employee’s employment.  They said they were satisfied Mr Pal had been dismissed by the Respondent company, but that the Respondent company had not been able to discharge the burden resting upon them to demonstrate the reason or reasons for the dismissal.  In the circumstances and pursuant to establish law, if an employer fails to prove the reason for dismissal, there follows an automatic finding that the dismissal is unfair and that was the ultimate finding this Tribunal came to.

	We have considered the facts in this case, with considerable care.  We have heard Mr Arun Soni address us about the improbability of Mr Pal’s account, and if we had the liberty and the freedom to hear this matter over again, taking into account documentary evidence that Mr Arun put before us, it may well be that we might have come to a different decision.  However we do not have that power to retry the issues of fact.  We are here to determine questions of law arising from the facts as found by the Employment Tribunal.  We have to ask ourselves whether Mr Soni, this morning, has raised an arguable point of law for us to consider.

	The second aspect of the appeal relates to holiday pay.  Notwithstanding the Respondents’ production of various documentary evidence showing that Mr Pal may have received all his entitlement to holiday pay, the Tribunal came to certain findings of fact; first it was an arrangement within the company that employees were allowed to carry over their holiday entitlement from one year to the next, and second, they concluded again as a question of fact that, pursuant to this arrangement, Mr Pal had not had his full holiday entitlement.  He was entitled to a further two weeks by the time his contract terminated at the beginning of July.  As he had not taken that holiday, he was entitled to be paid for it in lieu, and the Respondents’ failure to pay it amounted to an unlawful deduction from his wages under section 13 of the Employment Rights Act.  We have to ask ourselves whether in making that assessment, the Tribunal misdirected themselves on any point of law.

	On both the issue of dismissal and the question of holiday entitlement, we are satisfied that there is no arguable point of law, suggesting that the Employment Tribunal may have erred.  Accordingly we find there is no case it would be right to let through for argument at a full hearing of this Tribunal.  It is our duty therefore to dismiss the appeal, and we do so.