Appeal No.	 EAT/271/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 JUNE 2000

Before
HIS HONOUR JUDGE PETER CLARK
MISS A MACKIE OBE
MR R SANDERSON OBE

MR M ROWLEY	APPELLANT

STAGECOACH SOUTH LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	No appearance by or
on behalf of the Appellant

JUDGE CLARK

1	The Appellant, Mr Rowley, commenced his employment with the Respondent as a bus driver on 28 October 1996.  He was the subject of serious criminal proceedings during 1998, which led to his suspension with pay in February 1998.  Following conviction he was dismissed for gross misconduct on 27 October 1998.  An internal appeal against that decision was rejected by the new Managing Director, Mr Dyer on 8 December 1998.  Following that dismissal, with the assistance of his Trade Union representative, the Appellant presented a complaint of unauthorised deductions from wages to the Employment Tribunal on 29 December 1998.  It was his case that he was entitled to five weeks holiday pay for holiday not taken.  The claim was based on appendix F to a Collective Agreement made between the Respondent and the trade union, RMT.

2	The claim was resisted and came on before an Employment Tribunal at Southampton chaired by Mr I A Edwards sitting n 31 January 2000.  By a decision with extended reasons dated 1 February 2000 the Employment Tribunal dismissed the claim.  They found that the provision in the Collective Agreement Appendix F relied on by the Applicant stated: -

“On ceasing to be employed after one month’s continuous service, an employee should be entitled to holidays with pay at the rate proportionate to the length of service.  This allowance may be withheld or varied in the case of the an employee dismissed for misconduct.”

3	In these circumstances the Employment Tribunal held that the Appellant could not have it both ways.  If he relied on the provision contained in Appendix F as forming part of his terms & conditions of employment the proviso applied.  He was disentitled to arrears of holiday pay in circumstance where he had been summarily dismissed for gross misconduct.

4	A feature of this case was that neither side produced the Appellant’s original letter of appointment.  The Respondent had lost his personnel file.  The Appellant gave oral evidence that the letter of appointment did not mention the Collective Agreement.  Consequently the right to withhold pay on summary dismissal for cause did not form part of his terms & conditions of employment.

5	The Employment Tribunal considered that contention but pointed out that under the general law, in the absence of agreement, the Appellant would not be entitled to carry forward holiday pay from one year to the next.  We think that principle is to be found in the Court of Appeal decision in Morley –v- Heritage Plc (1993) IRLR 400.

6	Thus, in either event, the claim failed.  Against that decision Mr Rowley now appeals.  This is a preliminary hearing held to determine whether or not the appeal discloses any arguable point of law.  Mr Rowley is not present today.  He wrote to the Registrar on 15 April 2000, anticipating that he would be unable to attend at it was likely that he would be in prison for an unrelated matter.  We have therefore considered the matter on the papers.

7	The Appellant submits, in his grounds of appeal, that he is entitled to rely on the verbal contract made at his job interview before taking up the job in late October 1996, coupled with the “job offer”, which we take to be the letter of appointment which was not before the Employment Tribunal.  Neither at the interview nor in the letter was any mention made of the incorporation of the relevant Collective Agreement relied on by the Respondent and, it has to be said, the Appellant in his Originating Application.

8	There has been a further development.  On 8 April 2000 the Appellant wrote to the Registrar enclosing a copy of the letter of appointment by the Respondent dated 22 October 1996, which he states he found when clearing out his papers during a house move.  That letter makes no mention of the Collective Agreement.  He asks us to take it into account.

9	The position is that we will not normally receive evidence which was not before the Employment Tribunal.  An exception may arise where
(1) The new evidence has become available since the Employment Tribunal hearing and it could not with reasonable diligence have been placed before the Employment Tribunal, (2) it is relevant, credible and probative and (3) it is likely to have had an important influence of the outcome of the case below.  See Wileman –v- Minilec Engineering Ltd (1988) ICR 318.

10	Applying that threefold test it seems to us that the Appellant could have found the letter at his home and put it before the Employment Tribunal, however, the real question is whether it would have had an important influence on the outcome.  We cannot see that it would.  The Employment Tribunal rejected the claim on the alternative bases, first that Appendix F to the Collective Agreement formed part of his terms & conditions of employment, in which case he was caught by the proviso, or it did not, in which case he was unable to establish an implied term of the contract of employment permitting him to carry forward holiday pay entitlement.  See Morley.  Both findings are in our judgment, permissible and consequently, this appeal raises no arguable point of law.  It must be dismissed.