Appeal No.	 EAT/896/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 January 1999

Before
HIS HONOUR JUDGE C SMITH QC
MR R JACKSON
MISS D WHITTINGHAM

MR N NEWTON-SMITH	APPELLANT

MFI FURNITURE CENTRES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	JUDGE SMITH QC:	This is an application for leave to proceed to a full hearing of an appeal by the applicant before the Industrial Tribunal, Mr Newton-Smith, against a decision of an Industrial Tribunal held at Sheffield on 21st January and 12th March 1998 of which extended reasons were sent to the parties on 19th May 1998, when the Chairman, sitting alone, held that the applicant’s claim for breach of contract in respect of bonus and overtime payments failed, save in respect of agreed bonus payments of some £667.

	We have reminded ourselves that what we have to do on this preliminary hearing is to decide whether the applicant, Mr Newton-Smith - who has presented his case in person to us today - has established a point of law which is arguable by way of demonstration that the Industrial Tribunal erred in law in some way in the Chairman’s decision, and that is the test we have applied.

	Putting the matter shortly. It appears from the decision that the applicant had been employed as an energy manager by the respondents, MFI Furniture Centres Ltd, between 1994 and about September 1997, the exact date does not really matter, when we believe the position was that the applicant resigned, but again, that is not of crucial significance. 

	By his IT1 the applicant claimed that he was entitled to a certain bonus and overtime payments. 

	The Chairman summarised in detail the applicant’s claims in paragraph’s 1 to 5 of the decision. The Chairman then went on to find in paragraph 7 that the written contract of employment together with the relevant contents of the employee’s handbook had to be read together obviously as forming the contract of employment. The Chairman went on to make detailed findings in paragraphs 9 to 11, particularly in regard to the bonus scheme and the bonus arrangements. In paragraph 12 (i) to (viii) inclusive, the Chairman made findings of fact relating to the applicant’s rights, as he found them to be, in relation to bonus payments. The Chairman’s findings were to the effect that initially on his findings of fact the applicant had been told that he would not receive a bonus and that before May 1995, when a bonus scheme was put in place, the applicant was not entitled contractually to any bonus. The Chairman also found that no bonus was payable under the scheme which eventually was brought into force for the fourth quarter of the relevant year, which we believe was 1995/96, because targets had not been met and the Chairman was there referring back to certain evidence that he had heard as he summarised in paragraph 10 of the decision. The Chairman reiterated those findings in his conclusions as stated in paragraph 14 of his decision.

	With regard to entitlement to overtime, the Chairman made important inferential findings of fact, as we interpret his decision, in paragraph 5 of the decision, when he stated as follows:

“5.	The applicant also alleges that the respondent breached his contract of employment by its failure to pay him for overtime work throughout his period of employment. It only did so when he worked Sundays and Bank Holidays by paying him at an enhanced rate for duties performed on those days. Mr Newton-Smith contended that there was evidence to show that he was not simply paid for a basic 40 hour week and that he was in fact at times paid for the hours he actually worked. ...”

So the Chairman appeared to us to be making a clear finding there that the applicant had in fact been paid properly when he had worked properly, so to speak, under his contract on Sundays and Bank Holidays at the enhanced rates provided for by his contract. That appears to us to be the impact of that particular paragraph. But with regard entitlement to overtime other than at the Sunday and Bank Holiday rates (which were provided for expressly in the contract) the Chairman made findings of fact to the effect that the applicant had not been told anything in relation to overtime payment at his interview, and the Chairman concluded on his construction of the contractual documents that the applicant was not entitled to such payments under his contract. The Chairman also found as a fact that the applicant had never received overtime payments beyond his basic 40 hour week excluding of course payment for Sunday and Bank Holidays which the Chairman has already dealt with, and that the applicant had not complained about this during most of his period of employment. Then the Chairman found that no other person in the applicant’s position had either been entitled to receive or been paid such overtime payments. That is to say, management employees in similar positions to that of the applicant.

	That, in outline, was the decision of the Industrial Tribunal.

	We have heard from the applicant and we have had a great deal of arguments presented by him to us today. We have considered them all very carefully. Amongst the arguments addressed to us were suggestions that the Chairman had acted unfairly towards the applicant with regard to the procedure that he followed at the hearing and we feel that we should deal with those points straightaway.

	There was an argument addressed to us that the Chairman should not have allowed the respondents to amend their Notice of Appearance to dispute entitlement to overtime payments; but in our judgment this was essentially a matter for the discretion of the Chairman and gives rise to no arguable ground of appeal. No doubt a late amendment would always be taken into consideration by any experienced Chairman when considering the substance of matters raised therein; but in our judgment it gives rise to no arguable ground of appeal.

	Then there is a strong complaint that the Chairman and a predecessor Chairman acted wrongly in refusing to serve a witness order to secure the attendance of the respondents’ director, Mr Fisk. Briefly, what had happened there was that there had been an application for a witness order made not to the Chairman who has tried the case at the Industrial Tribunal, but to a colleague of his, and that application for a witness order for Mr Fisk made by the applicant had been refused. There had then been very lengthy correspondence about it; in our judgment, looking at that detailed correspondence, the upshot of the correspondence was that the applicant was in effect told that he could renew any application at the beginning of the hearing. We are quite satisfied, having looked at the applicant’s affidavit and having looked at the Chairman’s response in relation to this aspect of the matter, that there never was any application made to the Chairman at the beginning of the hearing for either the case to be adjourned in order to obtain the attendance of Mr Fisk or for a further application for a witness order. We appreciate that the applicant was in person and faced the difficulties of a litigant in person; but in our judgment it would have been quite reasonably open to him to have made such an application if he had thought it proper to do so, and we cannot see any arguable ground of appeal in relation to that matter.

	It is suggested that on a large number of conflicting disputes in the evidence. The Chairman always found against the applicant and in favour of the respondents. That is a general description of this ground of complaint. In our judgment, this is no more than an attempt to re-open matters which were properly dealt with by the Chairman at the hearing. We cannot regard that as raising any arguable ground of appeal.

	This way of putting the matter by the applicant applies particularly to his claim for a bonus payment, where he points out, correctly, that there was a conflict between his evidence as to what was said at interview about bonus, and the evidence of Mr Elders, which the Chairman resolved in favour of Mr Elders’ evidence. Now, in our judgment, with regard to the matter of the bonus, there is no arguable ground of appeal. In our judgment this was purely a matter of construction of the contract together with consideration of the evidence that was given in relation to the bonus scheme. In our judgment, the Chairman was fully entitled to reach all the conclusions he did relating to that particular claim and to conclude that there never was any entitlement to a bonus payment up until May 1995, and that the only entitlement of the applicant’s was the claim for £667, which was conceded by the respondents, relating to the final four months of the applicant’s employment.

	With regards to the grounds of appeal which are put forward in relation to the overtime claim, in our judgment the evidence before the Chairman was that that related to a claim for £12,680. In our judgment, on the evidence that was before the Chairman, there was absolutely nothing to indicate to the Chairman that this related, to the tune of some 30%, according to the applicant’s argument before us today, in respect of work done on Sundays and indeed to the tune of some 4% for work done on Bank Holidays, where undoubtedly if it was proper work the contract expressly provided that there should be payment either at double or at triple rates respectively. In our judgment, there was nothing to indicate to the Chairman that there was any such claim in relation to work done on Sundays and Bank Holidays. There may well have been some evidence to the effect that the applicant had not been paid when he was at home on call perhaps on Sundays and perhaps even on Bank Holidays, but in our judgment that is a quite different matter. The Chairman found as a fact, as we have already stated earlier in this judgment, that when the applicant did work, as distinct from being at home on call on Sundays and Bank Holidays, he was paid properly in accordance with the enhanced rates set out in the contract, and we really cannot allow the applicant now to seek to argue that in fact all along that 30% and 4% of his claim for £12,680 was in respect of Sundays and Bank Holidays respectively, and that the Chairman has completely misunderstood the evidence. In our judgment, no sufficient foundations have been established before us to enable us to consider that that gives rise to an arguable ground of appeal. So that, in our judgment, the claim that was before the Chairman for overtime work was for a claim in respect of overtime work not on Sundays or Bank Holidays but for work over and above the 40 hour period stipulated for in the contract. The Chairman was entitled to conclude in relation to that, looking at the terms of the contract, that there simply was no entitlement for any such overtime payment. The Chairman found and referred to the relevant parts of the contract which are in these terms:

“You are required to work 40 hours per week, with 1 hour unpaid meal break per day, plus such other time as required by the exigencies of the business, at the sole discretion of the Company. ...”

We end the quotation there because the contract then goes on to deal expressly with Sunday rates and Bank Holiday rates. In our judgment, that contract did not entitle the applicant to receive any payment for overtime other than on Sundays or on Bank Holidays. We conclude that the Chairman was correct so to interpret the contract. On that basis the contractual position was only too clear. We should add that we are satisfied that the applicant was also not entitled to be paid when he was working at home on call. There is nothing in the contract to indicate that that would qualify as overtime payments.

	On those grounds we are of opinion that the Industrial Tribunal Chairman’s decision cannot be impugned on any arguable matter of law with regard to overtime. We note that the Chairman also stated in the alternative, at the end of paragraph 14 of the decision, that the applicant had affirmed his contract in relation to overtime by accepting the position and not having protested about its non-payment until almost at the end of his time with the Company. In our judgment, the Chairman was entitled to reach those conclusions of fact, but we accept that such conclusions would not have amounted to a defence in law to the claim for overtime had the claim been properly based on contractual obligation since there is no sufficient evidence of any complete waiver by the applicant of his claim to overtime. We have borne that very carefully in mind. In our judgment, the claim was made in good time, being made within three months of the time when the employment terminated. So had the matter turned on that alternative way in which the Chairman dealt with the matter, we might well have acceded to this matter going forward by way of a full appeal. However, for the reasons we have already given, we are wholly satisfied that there was simply no contractual entitlement to overtime payments, save for Sunday and Bank Holiday working. 

	For those reasons we have concluded that there are no arguable grounds of appeal which have been put forward before us which entitle this matter to go forward to a full appeal. Accordingly, this application is dismissed.