Appeal No.	 EAT/398/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 July 2000

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MR K M YOUNG CBE

MR T BALL & MRS K BALL T/A KARA HAIR STAUDIO	APPELLANTS

MISS R A MITCHEL 	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANTS	

	JUDGE PETER CLARK:	

1	By an Originating Application presented to the Bristol Employment Tribunal on 6 September 1999 the applicant, Miss Mitchel, claimed that her former employers, the respondents Mr and Mrs Ball, t/a Kara Hair Studio, had failed to pay her the minimum wage of £3 per hour required by the National Minimum Wage Act 1998 from the date that Act came into force, 1 April 1999, until the termination of her employment as a hair stylist by the respondents on 5 June 1999.

2	The respondents failed to enter an appearance and did not attend the hearing of her complaint before a Chairman, Mr C.F. Sara, sitting alone at Bristol on 22 November 1999.  In those circumstances the Chairman heard evidence only from the applicant.

3	On that evidence, which he accepted, the Chairman found that the applicant, who was aged 18 years on 1 April 1999, was a person who qualified for the National Minimum Wage within the meaning of section 55 of the Act.

4	He considered whether the applicant was excluded from qualification by the provisions of regulation 12 of the National Minimum Wage Regulations 1999.  By regulation 12 (2) a worker aged between 18 and 19 who is employed under a contract of apprenticeship or a modern apprenticeship referred to in regulation 12 (3) does not qualify for the minimum wage.

5	The Chairman was satisfied that in order to amount to a modern apprenticeship the worker must be engaged on a training plan which involves aiming for at least one qualification at NVQ level 3.  He found, on the evidence, that the applicant’s training plan only involved qualification to NVQ 2.

6	In these circumstances, by a decision promulgated with extended reasons on 26 November 1999, the Chairman upheld the applicant’s complaint of unlawful deductions from her wages and awarded her the total sum of £79.28.

7	Against that decision the respondents appealed by a Notice dated 14 January 2000.  The ground of appeal was that the applicant was not a worker entitled to protection under the Act because she had applied to undertake further training to NVQ level 3 and thereby fell foul of regulation 12 (2) of the regulations.

8	The case was listed for preliminary hearing today.  During the morning the court was informed that the respondent, Mr Ball, had broken down on his way here from Gloucester.  He was not far from London and we put the case back to 2 pm.  When the court had completed its other business at 3:45 pm we saw a fax from the respondent, Mrs Ball timed at 2:59 pm, explaining that Mr Ball had broken down on the M40 motorway near Beaconsfield and could not attend the hearing.  The respondents requested an adjournment.

9	We refused that application, first because we were not satisfied that Mr Ball was prevented from attending the hearing.  Trains run from Beaconsfield to London and we were surprised that it took three hours for him to obtain assistance to repair his vehicle.  But secondly and more significantly because this appeal is not properly constituted.  

10	Paragraph 16 of the Employment Appeal Tribunal Practice Direction requires that an appellant who has not entered a Notice of Appearance below file an affidavit showing (1) that there is a good excuse for failing to enter a Notice of Appearance and (2) that there is a reasonably arguable defence to the claim.

11	The respondents’ case is that the applicant was continuing her training to NVQ level 3 during her employment with the respondents.  That is firmly denied by the applicant, both in her evidence before the Employment Tribunal and in a letter to the Employment Appeal Tribunal.  The place to decide that question is before the fact-finding tribunal, the Employment Tribunal, not the Employment Appeal Tribunal whose jurisdiction is limited to considering questions of law.

12	In these circumstances it was incumbent on the respondents to explain why they failed to enter a Notice of Appearance or to take any part in the proceedings below.  They have failed to do so.  Accordingly we shall not permit the respondents to pursue this appeal.  It must be dismissed.