Appeal No.	 EAT/834/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 November 1999

Before
HIS HONOUR JUDGE A WILKIE QC
MRS M T PROSSER
MRS R A VICKERS

MR A F X MARTYRES	APPELLANT

CONNEX SOUTH EASTERN LIMITED	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR J HORAN
(of Counsel)
Instructed by:
Ms C Halperin
Messrs Russell Jones & Walker
Solicitors
Swinton House
324 Gray's Inn Road
London
WC1X 8DH	

	JUDGE WILKIE QC:	This is an appeal by Mr Martyres against the decision of the Employment Tribunal Chairman, sitting alone, dated 14th May 1999 and sent to the parties on 18th May 1999. In which the Chairman rejected Mr Martyres claim for an unlawful deduction of wages pursuant to the Wages Act 1986.

1.	We are satisfied that there are grounds disclosed in the Notice of Appeal which should go forward to a full hearing. Namely those grounds which are set out at paragraphs 6.1, 6.4 and 6.5.

2.	As to the other grounds. Ground 6.2 which is on the footing that the Chairman erred in law in permitting the respondents to rely upon unpleaded grounds, we think is simply unrealistic given the informal nature of tribunal proceedings and the fact that the argument put forward was obviously one that might well be made and one which the applicant, through his representative, was well in a position to deal with and we think that there is no reasonably arguable case that that, on its own, would constitute grounds for appeal.

3.	As to 6.3, again, we think that there is no reasonably arguable point disclosed by that. It is plain from the terms of tribunal’s decision at paragraphs 22 to 24 that the factual scenario which is posited in ground 6.3 was not in fact the scenario with which the tribunal was dealing.

4.	As far as 6.6, namely, perversity. It is clear to us that the points that we have agreed should go forward are points of law. If they succeed then the applicant has no need of a perversity argument. If they do not succeed, then, in our judgment, there is simply no room whatsoever for a backstop perversity argument. This is a pure point of law or nothing.

5.	As far as the time estimate is concerned, Mr Horan is known to be an advocate of brevity and wit and we think, having cut down the issues in the way that we have, 1½ hours should be sufficient and listed Category C.

[Mr Horan submits, as there is no authority on the position of whether there are special considerations which apply to collective bargaining where you have got, as it were, agreements arising by conduct, that may be this case should be listed higher than a Category C case.]

6.	We make no comment about the wisdom of this whole litigation, but we certainly do not think that it raises any points of general importance beyond the particular facts of the case.

	[Mr Horan submitted that since October 1998 the appellant has been paid nothing. The instructing solicitors have written to the respondents on three separate occasions throughout the year. The respondents are paying the appellant’s tax and deductions for him and paying the balance of the money into their own account which they set up. Mr Horan, himself, has raised the subject twice outside Court, as to whether this money, which is undoubtedly the appellant’s, can be paid across to him. Mr Horan and the instructing solicitors have suggested that a cheque be written and they have suggested that the appellant have access to the account that has been set up, etc. The only response that they have received is that unless the appellant concedes the principle that the respondents are entitled to pay the appellant cashless pay, he will not see a penny of the money. Mr Horan submitted that set against that background, Mr Martyres, notwithstanding, in open correspondence, the attempts of his lawyers to actually give him some money in his pocket while he is waiting for this matter to be resolved, have managed to achieve nothing. The appellant is substantially relying on his family and such funds that the union have available, for his day to day necessaries. Mr Horan went on to say that beyond writing open letters that this situation is ridiculous, those instructing him can do no more to obtain the payment of that money until this process runs it course. Mr Horan knows that the Appeal Tribunal seldom, if ever, orders expedition, but he also knows that a judge can put a note on the file that this is a matter which ought to be listed at the first available point. Mr Horan invited the tribunal in those circumstances to take that course.]

7.	What Mr Horan has described is a ridiculous situation. Whether it is self-inflicted or not is another matter. It certainly does seem that Mr Martyres should not be out of pocket for any longer than is absolutely necessary. For what it is worth, we do indicate that this is a case which should receive some expedition.