Appeal No. EAT/0374 & 0375/03/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 June 2003

Before
MR RECORDER LUBA QC
MRS J M MATHIAS
MR H SINGH

MISS H L MARSHALL	APPELLANT

MR A A KACHRA	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised
______________________________________________________________________________

	APPEARANCES

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

MR RECORDER LUBA QC:

Introduction
1.	There are before us two appeals brought by Miss Marshall against decisions of the Nottingham Employment Tribunal sitting at Boston.  The first of her appeals relates to a decision entered in the register on 5 December 2002.  The second relates to a decision entered in the register by the Employment Tribunal on 31 March 2003.  By the latter of the two decisions, the Employment Tribunal declined to revise its first or earlier decision.  This Employment Appeal Tribunal has given directions that the two appeals should both be listed for a preliminary hearing.  Miss Marshall is represented in both appeals by Mr Capek.  He is an employment law consultant.  He indicated in writing, in advance of today’s hearing, that he would not be attending to represent Miss Marshall.  He has further today confirmed by telephone that he would not be attending but that he wished us to proceed on the basis of his skeleton argument and the other papers he has assembled in a paginated bundle which is before us and which runs to some 51 pages.

Facts
2.	Miss Marshall was employed by Mr Kachra as the manager of a residential care home of which he was the proprietor.  That employment lasted from May 2000 until late February or early March 2002 when Miss Marshall resigned.  By an Originating Application received by the Employment Service on 16 May 2002 she raised complaints of two matters.  These were:-

(1.)	Unfair constructive dismissal.
(2.)	Breach of contract.

The breach of contract claim had four elements.  The first aspect of that breach of contract claim was an alleged failure to set up a bonus scheme and pay a bonus.  The second aspect was alleged failure to pay anything in relation to “on-call hours”.  The third breach of contract was said to be the failure to pay holiday pay.  The fourth breach of contract was failure by the employer to reimburse expenditure on fuel.

3.	The complaints were met by a response from Mr Kachra in a Notice of Appearance dated 7 June 2002.  At the hearing before the Employment Tribunal on 7 November 2002, the claim for breach of contract in respect of non-reimbursement for fuel costs was not pursued.  The Employment Tribunal then proceeded to hear and dispose of the matters of the alleged breach of contract in relation to the “bonus” and the alleged breach of contract in relation to non-payment for “on call” hours.  

4.	Having dealt with those matters it withdrew to give parties an opportunity to explore possible settlement of the remaining issues.  During that adjournment, the parties did compromise the claims for unfair dismissal and for breach of contract for non-payment of holiday pay.  That therefore dealt with all of the issues forming part of the Originating Application.

5.	By a Notice of Appeal, given in January 2003, the appellant asserts that the Employment Tribunal erred in law.  In summary it is contended that, first, the Employment Tribunal acted unfairly in not calling on the respondent before determining the bonus and “on call” issues.  Secondly, that in relation to both issues, the Employment Tribunal erred in law in more particular respects, to which we shall return in detail below.  Pursuant to a direction of this Employment Appeal Tribunal, we have had written representations from the respondent’s solicitors on those points which we have considered alongside the written submissions for Miss Marshall.

6.	Meanwhile, the appellant had herself applied, by her representative’s letter dated 15 December 2002, for a review by the Employment Tribunal itself, of its own earlier decision. That application for a review was put on the basis that the interests of justice required such a review.  The lengthy letter in support of the request for a review, which we have in our bundle at page 36 onwards, sets out the essential case for the appellant that the Employment Tribunal had acted unfairly in not calling on the respondent and had erred in its approach on the bonus and “on call” issues.

7.	For extended reasons given on 20 March 2003, the Employment Tribunal Chairman refused the request for a review hearing on the grounds that the review had no reasonable prospect of success.  Accordingly, by her second Notice of Appeal, the appellant contends that the Employment Tribunal Chairman erred in law in rejecting the request for review, because, again, in summary:-

(1.)	The request for review included factual and legal points which the earlier Employment Tribunal had failed to consider, and

(2.)	The Employment Tribunal had, as the review request asserted, earlier and wrongly determined that it did not have jurisdiction to deal with the bonus issue.

The First Appeal
8.	As already indicated, this first appeal has three discrete elements.  First, it is said that the Employment Tribunal acted prematurely in determining the bonus and “on call” issues without calling upon the respondent to deploy his evidence or without requiring the respondent to make any legal submissions.  It is contended that the Employment Tribunal acted unfairly in conducting the proceedings in this way with the consequence that the appellant was denied, not least, an opportunity to make submissions in reply.

9.	Is that alleged error on the part of the Employment Tribunal properly arguable?  We do not consider that it is.  It is for an Employment Tribunal to regulate its own procedure and to act in accord with what it believes the justice of a case requires.  On many occasions, that will be a discretion only capable of being properly exercised by hearing the case on a particular point for both parties.  However, the instant case, is not, in our view, of that class.  The points as to entitlement to “bonus” and “on call” payments were points on which the burden lay fairly and squarely on the applicant.  She gave her evidence and she called the evidence of a witness in support.  She was represented throughout by Mr Capek and he had put in a full skeleton argument before the Employment Tribunal in relation to her case.  He provided authorities which he contended supported her arguments.  Those representations, arguments and authorities were considered by the Tribunal Members over the luncheon adjournment at the conclusion of the applicant’s case.  On resuming, the Employment Tribunal expressly invited Mr Capek to make any further submissions he may wish to make on the “bonus” and “on call” points (see paragraph 8 of the extended reasons first given by the Employment Tribunal and paragraph 5(iv) of the extended reasons given on the review request).

10.	The Tribunal was, at that stage, able to be satisfied that there was no basis on which these claims could possibly succeed and it exercised its discretion not to call upon the employer to respond to them.  The submissions made by the employer in response to the request for a review made to the Employment Tribunal, remind us of the relevant authorities.  The principles derived from cases such as Coral Squash Clubs Ltd v Matthews and Matthews [1970] IRLR 390 and Ridley v GEC Machines Ltd [1978] 13 ITR 195 bear out the approach which we have adopted.  As we have recorded, normally, it would be of great importance to hear both sides.  But, if having heard one side (and that side bearing the burden) the Tribunal is satisfied the contentions cannot possibly succeed there is no criticism to be made of an Employment Tribunal which does not then call upon the other party to deploy its evidence or arguments in response.  In short, we can detect no arguable error of law in the approach of the Employment Tribunal in this case or in the exercise of its discretion to determine the “bonus” and “on call” points at the close of the applicant’s case.  Certainly we are unable to detect any prejudice suffered by Miss Marshall as a result of that method of proceeding.  She and her representative were given ample opportunity to make their case, deploy their arguments and call such evidence as Miss Marshall wished to call.

11.	The second element in the Notice of Appeal, on the first appeal, is a contention that the Tribunal erred in law on the “bonus” point.  The issue before the Tribunal posed by the Originating Application was whether the employer had breached Miss Marshall’s contract of employment by:-

(1.)	Failing to establish a bonus scheme and, or,

(2.)	By failing to pay a bonus.

The key issue was whether the applicant could establish either requirement as a provision of her contract of employment.  The extended reasons provided by the Employment Tribunal for their decision on this point, firstly, record Miss Marshall’s case.  That is, in our view, accurately and helpfully summarised at paragraph 4 of their extended reasons.  Then, having set out the case put by Miss Marshall and her representative, the Employment Tribunal made their findings of fact.  They say at paragraph 11(i) :-

“The letter dated 13 March 2000 did not create a contractual entitlement to a bonus.  There was no contractual term that created a mechanism to value the bonus.  Nor was there anything from which one could infer that the parties intended any specific form of calculation.  The letter created no more than a statement of intent by Mr Kachra that there would be some kind of bonus.  No evidence had been placed before us that it was the custom and practice within the employment that managers of care homes received bonuses apart from the case of one manager who had a specific arrangement of receiving an introduction fee in respect of new clients.  There was no evidence that during the twenty-two months of her employment Miss Marshall ever raised with Mr Kachra the non-payment of a bonus.  To conclude a contractual entitlement of 10% salary less 20% would be entire speculation.”

12.	Having made that finding of fact, the Tribunal reached their conclusion which they record at paragraph 12 in these terms:-

“On the basis of our findings of fact we concluded that there was no contractual entitlement to a bonus payment of £2,200.  It was not open to the Tribunal to write new terms of contract and award Miss Marshall an amount we thought appropriate. Our task was limited to deciding the meaning of the terms that had actually been agreed by the parties or which reasonably could be implied from the surrounding circumstances.”

It is no part of the function of this Employment Appeal Tribunal to rehear the evidence or reconsider the documents to see if we would have reached the same conclusion as the Employment Tribunal.  Our role is simply to detect any error of law in the Tribunal’s approach or conclusion.  

13.	Mr Capek takes two points in the Notice of Appeal which he expands upon in the skeleton argument.  First, he contends that the Employment Tribunal misdirected itself, that it did not have jurisdiction to entertain what might be an unliquidated claim.  We reject that contention entirely.  The decision neither expressly not by any implication contains any such misdirection.  The assertion to the contrary is wholly unarguable. 

14.	Mr Capek’s second contention is that the letter sent to Miss Marshall on 13 March 2000, contained a contractually binding obligation and the Tribunal have failed to recognise that.  In fact, the Employment Tribunal reproduce, in their extended reasons at paragraph 4, the relevant sentence from the letter of 13 March 2000 which states as follows:-

“There may be bonus subject to performance.  Criteria of performance will be set up after the time of your employment.”

It is contended now, as it was contended before the Employment Tribunal by Mr Capek, that that created a contractual entitlement to a bonus or bonus scheme and, in either eventuality, amounted to a contractually binding obligation to pay one.

15.	The Tribunal did not so hold.  We have already recited their findings of fact and their conclusions.  We cannot describe as arguable the contention that this finding by the Tribunal was erroneous, or, more directly, that the document relied upon by Miss Marshall contained a contractually binding obligation to do anything in relation to a bonus.  In our view, the Employment Tribunal were plainly right for the reasons they gave and there is no merit in the proposed ground of appeal.

16.	The third aspect of the Notice of Appeal in relation to the first Tribunal decision, refers to the contention that Miss Marshall should be remunerated for the time she was “on call” when not actually at the care home.  The evidence was that from time to time she would be telephoned at home or on her mobile telephone and called to assist at the care home.  In respect of this contractual claim for payment for the “on call” hours, Miss Marshall’s case was well developed before the Employment Tribunal and they helpfully summarise it at their paragraph 5 of their extended reasons.  They record, at paragraph 10, the evidence in support of the contention and the submissions made by Mr Capek.  They then set out at paragraphs 11(ii) through to 11(v) their findings of fact.  The conclusion which follows in paragraph 12 is in the terms we now set out:-

“So far as the “on call” hours are concerned the arrangement whereby Miss Marshall would respond to telephone calls was voluntary and not contractual and, therefore, she had no contractual right to be paid in respect of that time.”

17.	The Notice of Appeal, as again augmented in the skeleton argument (which itself refers to earlier written submissions made by Mr Capek) contends in summary as follows.  First, the Employment Tribunal failed to consider whether there was any implied term that Miss Marshall be “on call” in the absence of any documents or express term to that effect.  Secondly, the Employment Tribunal failed to apply the relevant authorities.  By letter dated 4 February 2003, Mr Capek introduces a supplementary or additional ground, that the Employment Tribunal asked themselves the wrong legal question on the issue of “on call” hours.  That additional ground of appeal is in the following terms:-

“I believe that the tribunal erred in law in asking itself the wrong question with regard to the frequency of Miss Marshall’s “on-call” commitment.  The tribunal in effect asked itself “What happens with regard to on-call in the workplace generally”, and concluded that it was highly unusual for any employee to be expected to be on call on a virtually permanent basis.  The tribunal should have asked itself “What was happening in Miss Marshall’s case, in the particular circumstances of this employment?” or something similar.  This was a significant misdirection on the part of the tribunal.”

In further support of this aspect of the appeal, Mr Capek prayed in aid the decision of the Court of Appeal in the Walton case, the full title of which is Walton v Independent Living Organization Ltd and we were are referred to the report as it appeared in “The Times” newspaper on 27.2.03.

18.	We have carefully considered each of these grounds of appeal, the written submissions in support of them and the authorities to which we have been referred.  We do not consider any of these grounds to be reasonably arguable.  For our part, we can detect no misdirection by the Employment Tribunal in any of the respects alleged.  In our judgment, the Employment Tribunal dealt amply and properly with the case as it was before them.  There is not a shadow of error of law appearing from their approach.  For those reasons we must find that the appeal in relation to the “on call hours” is likewise not properly arguable.  It follows that none of the grounds set out in the Notice of Appeal relating to the original decision as augmented by a supplementary or additional ground, discloses any arguable error of law.  We accordingly dismiss the appeal in relation to the first case 0374/03.

The Second Appeal
19.	We then turn to the appeal against the Employment Tribunal’s decision not to admit a review.  That was a decision made by the Chairman alone.  The Notice of Appeal in respect of that review decision covers much the same territory as the appeal in relation to the original Tribunal decision.  Indeed, the thrust of the submissions developed in support of the request for the review, covered much the same ground.  Certainly, it might be said that there has been some shift of emphasis in the way in which the points are presented or argued but we do not believe that there is any point or matter which was urged on review which demonstrates that it would have been in the interests of justice to convene a review hearing.  We can detect no error of law on the part of the Employment Tribunal Chairman in rejecting the request for a review hearing.  In essence it appears to us, meaning no disrespect, that Mr Capek was seeking simply another opportunity to re-run the same arguments, although slightly differently formulated.  For those reasons we find that there is no arguable error of law in the Employment Tribunal Chairman’s decision and we dismiss the appeal 0375/03.

20.	In those circumstances both of these appeals are dismissed and this is unanimously the judgment of all members of this Employment Appeal Tribunal.