Appeal No. EAT/0477/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 July 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P A L PARKER CBE
MR A D TUFFIN CBE

ACS INDUSTRIES (UK) LTD	APPELLANT

MR J R BROWN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

JUDGE PETER CLARK

1.	This is an appeal by the Respondent before the London South Employment Tribunal, chaired by Mr John Warren, sitting alone on 27 February 2001, against the Tribunal’s decision, promulgated with extended reasons on 13 March 2001, awarding the Applicant, Mr J R Brown, the sum of £127.42, unlawfully deducted from his wages.

2.	This appeal was first listed for preliminary hearing in June 2001.  Following Notice of Hearing Mr Ray Dargan, Managing Director of the Respondent company wrote to the Registrar on 14 June explaining that the date would not be convenient to him or Mr Simon Everett and asked for it to be put back until the middle of July.  That application was granted and the matter re-listed for today.

3.	We have before us a letter dated 27 July from Vu Phong of the Respondent, who explains that unhappily Mr Dargan’s 86 year old mother is in poor medical condition in Ireland, which requires that he immediately flies to her bedside.  That letter does not in terms ask for an adjournment.  Had it done so we should have refused it.

4.	This case has already been adjourned once.  No explanation is given as to why Mr Simon Everett could not attend on behalf of the company.  The appeal involves an award of £127 in favour of the Applicant.  It would be grossly disproportionate, this Tribunal having convened to hear this case, for the matter to be adjourned again.

5.	The Applicant was employed by the Respondent as a Window Cleaner from 21 August until 2 November 2000.  Following termination of that employment he presented an Originating Application to the Employment Tribunal on 14 November claiming, among other things, that the Respondent had unlawfully deducted from his final wages the following sums; £26.42 for a telephone bill; £34.33 for an overhead sign; £41.45 for a frame and £25 for radio repairs.

6.	By their Notice of Appearance the Respondent did not dispute that these deductions had been made, totalling £127.20.  The Notice of Appearance does not assert that the Appellant consented in writing to the making of those deductions according with Section 13(1)(b) of the Employment Rights Act 1996.

7.	Prior to the hearing fixed for 27 February the Respondent applied, unsuccessfully, for an adjournment.  On the day neither party appeared, the Applicant relying on written representations.

8.	On the material before him the Chairman upheld the unlawful deduction claim in the sum of £127.24, based on the wage slips produced to him.  He observed, at paragraph 5 of his reasons that, in the Notice of Appearance:

“The Respondent did not argue that these were within the exceptions of Section 13 of the Employment Rights Act 1996.”

Further claims by the Applicant were adjourned.

9.	Against the Chairman’s decision the Respondent appeals by a Notice dated 3 April 2001.  Attached to that Notice are documents purporting to be receipts for items provided to the Applicant and signed and dated by him on 21 August 2000, the date on which his employment began.  Each document contains a statement relating to deductions from the Appellant’s wages.  On this basis the Respondent seeks to rely upon the provisions of Section 13(1)(b) of the Employment Rights Act 1996 in answer to the unlawful deductions claim.

10.	We shall not embark on an analysis of whether or not the requirements of Section 13(1)(b) have been met in relation to all or any of the items in respect of which deductions were made for this reason.

11.	It is for the parties to put their case and all relevant evidence in support of that case before the Employment Tribunal.  This Respondent failed to do so; the Section 13(1)(b) point was not taken in the Notice of Appearance; the copy documents attached to the Notice of Appeal were not sent to or put before the Employment Tribunal.  Plainly the Respondent could have done so; there are no grounds for admitting fresh evidence after the Tribunal hearing, either on a review application (not apparently made in this case), nor on appeal.  See Wileman v Minilec Engineering Ltd [1988] ICR 318.

9.	In these circumstances there are no grounds in law for interfering with the Chairman’s decision.  The appeal is dismissed.