Appeal No.	 EAT/1428/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 March 2000

Before
HIS HONOUR JUDGE N BUTTER QC
LORD GLADWIN OF CLEE CBE JP
MR J A SCOULLER

MR VEYSI MUSTAFA	APPELLANT

(1)COMMERCIAL LEISURE GROUP (2) MR ROBERT AINSWORTH	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Miss A Corrigan 
Barrister
(North Islington Law Centre	
For the Respondents	Appearances not entered	

JUDGE COLLINS CBE 	This is an appeal chaired by Mrs Mason sitting at London North.  The extended reasons having been promulgated on 26 October 1999 although it says 26 November at the foot of the reasons.  I think that must be an error.  

1.	By their decision, the Tribunal concluded that the Appellant had been unfairly dismissed by the 2nd Respondent, Mr Ainsworth and awarded a basic award of £3,000.  They held that Mr Ainsworth had made unauthorised deductions from the Appellants employment in two sums £207.39 and £1,333.09.  They held that Mr Ainsworth had wrongfully dismissed the Appellant by dismissing him summarily without giving him the 12 weeks notice to which he was entitled and they awarded damages of £4,102.80 and they awarded £683.80, apparently against both Respondents, Mr Ainsworth and the Commercial Leisure Group, for failing to provide written reasons for dismissal and the total sum awarded against Mr Ainsworth was £9,119.69.  Mr Basu from ELLAS who has been kind enough to represent administer for this morning has not been able to give us any information that steps have been taken to enforce this judgement against Mr Ainsworth since the date when it was given.  

2.	Neither Mr Ainsworth nor the first Respondents, Commercial Leisure Group was represented appeared or was represented before the Tribunal, nor did they put in an appearance.  And the first question, which arises, is that who the Appellants employer was.  He was waiter working at the Crazy Horse in Regents Street and he had been working there since April 1973, under a variety of different management’s.  The most recent change of ownership was in March 1999 and he apparently told the Tribunal that Mr Robert Ainsworth was the new boss.  Mr Mustafa is a waiter of Turkish extraction.  He is not a lawyer and the expression that Mr Ainsworth was his boss seems to us to be not necessarily an unerring piece of evidence directed towards the question of who the ultimate employer was.  At any rate, it is said in the Notice of Appeal that the bundle before the Tribunal which we haven’t seen today included the Appellants pay slips from Commercial Leisure Group and in those circumstances it is not altogether easy to follow the basis on which the Tribunal concluded at paragraph 3, that the second respondent, Mr Ainsworth was the employer.  

3.	The next point, which arises, is the calculation of compensation for the purposes of the basic award.  The Appellants basic pay was £100 a week but like most waiters he depended on his tips and the figures show that he was taking home an average of £341.90 for, I think the 12 weeks prior to his summary dismissal on 24 April 1999.  And it is not clear why the Tribunal only awarded a basic award on the basis of £100 a week.  They also failed to make a compensatory award for reasons, which they gave, were that they had no evidence as Mr Mustafa's loss.  Again it was a little difficult to follow that because the Tribunal could or should have established whether Mr Mustafa was working at the time of the hearing, whether he had made any efforts to obtain alternative employment and how long he would have wanted to carry on working for and although we accept that the Tribunal is not an investigative body, nevertheless it would have been a very simple series of questions to ask Mr Mustafa in the circumstances.  So that we do think there are reasonable points of law to argue.  

4.	Firstly on the question of who Mr Mustafa’s employer was at the time of his dismissal and secondly on the question of the calculation of the basic award and thirdly on the question of whether or not a compensatory award should have been made and for those reasons we shall the appeal to go forward. We enter one caveat in paragraph 5 of its reasons, the Tribunal decided that Section 109 (sub section 1 of the Employment Rights Act 1996) which would have barred Mr Mustafa’s claim because he is over 65 is incompatible with Article 119 now Article 141 of the Treaty of Rome, that was a point decided in favour of Mr Mustafa and we haven’t embarked on the question of whether or not that decision was right, but we simply note that there is a question mark over it. 

5.	And the directions which will give as follows.  Time estimate 1 1/2 hours listing categories C, skeleton arguments 14 days before the hearing and it would be helpful if the bundle marked A1 which was evidence before the Tribunal was lodged with this Tribunal and I so direct that Miss Corrigan’s skeleton argument be lodged with this Tribunal.