Appeal No.	 EAT/388/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 5 September 2001

Before
MR RECORDER UNDERHILL QC
MRS M T PROSSER
MR B M WARMAN

MR H CONWAY	APPELLANT

COMMS PEOPLE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS S COWEN
(of Counsel)
Instructed By:
Mr R Silverstein
Messrs Browne Jacobson Aldwych House
81 Aldwych
London
WC2B 4HN	

MR RECORDER UNDERHILL QC:

1	We intend to allow this appeal to proceed on both aspects.

2	First, we are satisfied that there is an arguable point of law as to whether the deduction made by the Respondents was lawful having regard, in particular, to the provisions of paragraph 3 of Schedule 1 to the Social Security Contributions and Benefits Act 1992.

3	Secondly, so far as the quantification of the loss on the Respondents’ counter-claim is concerned, it seems to us arguable that the manner in which the Tribunal explained its thinking at paragraph 13 of the Reasons was inadequate.  Further, there appears from the correspondence which we have seen, as helpfully explained to us by Miss Cowen, to be some dispute as to what issues as regards the quantum of loss were properly raised before the Tribunal;  and it is at least arguable that the finding which the Tribunal made was one which was not open to it on the evidence.  The particular point made by Miss Cowen is that there was no evidence of any liability or loss on the part of the Respondents corresponding to the loss said to have been suffered by companies further up the contractual chain.   

4	So far as that last point is concerned, it seems to us that the matter cannot be fairly dealt with at the full hearing without sight of the Chairman’s notes (a) on the evidence relating to loss, including but not limited to the relationship between the various companies involved in the project, and (b) of any discussion with or submissions to the Tribunal as to the effect of the evidence called on that issue.  We accordingly direct that the Chairman be directed to provide the notes of the hearing to that extent.  Within 28 days of the despatch of a copy of the Chairman’s notes to the parties the Appellant should provide a short statement indicating any respects in which he challenges or wishes to add to or qualify the contents of the notes as regards what evidence was given and what points were made;  and, within 21 days of that statement being served on them, the Respondents should provide a statement indicating whether any of the Appellant’s points are in issue.  The thinking behind that mechanism, as I hope is clear, is that while it is to be hoped that the position will be entirely clear once the Chairman’s notes have been received, experience tells us that that is not always the case;  and we wish to avoid a situation in which at the full hearing the parties are on the one hand saying “Oh well, the notes make it clear that this point was raised” and the other party saying “No, that was a different point” or “Yes, but it does not indicate my reply” and so forth.  We do not want long essays from the parties, but we do want to know if there is going to be any significant point of dispute about what happened at the hearing.

5	Without disrespect to Miss Cowen, whose oral submissions have been most succinct and helpful, I think I speak on behalf of all members of the Tribunal in saying that the issues she explained to us hardly leap from the page in looking at the Notice of Appeal, and we will give her leave within 21 days of the receipt of the Respondents’ statement referred to above to serve an amended Notice of Appeal.  The point is not so much that there are whole areas of the Notice which we wish to cut out, because, as far as we understand it, the points which she is making in the Notice of Appeal are those to which we have referred, but that the Tribunal is likely to be assisted at the full hearing by having those points rather more succinctly made.  But it would make sense for that not to be done until the ambit of any dispute on the question of the counter-claim has been identified, and that is why we are not asking for amendment at this stage.

6	We would also observe that it appears to us that there may well be an issue, if the Appellant succeeds on the issue of the lawfulness of the deduction, whether nevertheless he was entitled to walk off the site in the way he did;  that is to say, it would not seem to us necessarily to follow, if he succeeds on the first point, that the counter-claim will fail.  We express no concluded view on that, but we raise it for the consideration of the parties.  It is not, of course, a question which arose below, given the Tribunal’s conclusions.

7	Finally, nothing which we say is intended to preclude any argument that may be raised that the points now taken were not properly taken below.  We are not in a position to form any view on that;  but the procedure which we have put in place to clarify any dispute as to what occurred below will, I hope, make it easier for the Tribunal at the full hearing to identify whether there is a Kumchyk point here or not.

8	Postscript:  Following delivery of the preceding part of this decision we invited the Respondents’ solicitor, who was in Court, to draw our attention to any fundamental flaw in the reasons which we have just expressed and, more particularly, to any problem with the directions.  This was an unusual course, but seemed sensible in the light of the inter-solicitor correspondence which we had seen.  We had some short, helpful submissions but I can summarise their effect by saying that they merely reinforced our view that it is highly desirable that there be a formal statement from both sides, once the notes are available, which indicates precisely what issues were and were not raised and whether there is any dispute about that.  It is possible, though we do not encourage this, that if at the end of the day there are significant factual disputes about the way in which the proceedings went, further directions may be needed (for example, for sworn statements);  but we would discourage any further interlocutory steps unless they are really of fundamental importance.

9	We would direct that this case be listed as Category B with a time estimate of three hours.  The estimate may need to be revised upwards if there are substantial issues as to the course of proceedings below.