Appeal No.	EAT/1044/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 November 1998

Before
HIS HONOUR JUDGE D PUGSLEY
MR R JACKSON
MISS D WHITTINGHAM

MR S GANDHUM	APPELLANT

(1)	MRS S HILL 
(2)	MR P LOWIS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR JOHN CROSFILL
(of Counsel)
Instructed by:
Mr D Lakhami
Messrs Francis & Francis
Solicitors
775 Harrow Road
Wembley
Middlesex
HA0 2LW	

	JUDGE PUGSLEY:		This is an application by a respondent to the initial hearing, the employer, to say that there are arguable grounds in the grounds of appeal. In a long, careful and comprehensive tribunal decision, the Industrial Tribunal sitting at London (South) under the Chairmanship of Miss Lester, decided that the proper respondent was Mr Gandhum, that the applicant had been unfairly dismissed and they awarded the sum of £4,195.70 to the applicant. They also ordered a sum under the Wages Act of £15.36. They decided that there was an contractual entitlement for pay in lieu of notice, but made no separate award since that was subsumed within the compensatory award of the unfair dismissal.

	We would like to pay tribute to the robust frankness of Mr Crosfill who has appreciated, in the light of certain matters that have now come to light before us that there are certain difficulties. His first ground of appeal is that the appellant had been the subject of an error in law that the tribunal refused to his request for an adjournment. He has cited the case of Carter v Credit Change Ltd [1981] AELR 252. That decision, if one may say so, is of assistance, but that case deals with the position when there are pending civil proceedings. 

	In this case, we consider, having seen the correspondence, that the tribunal were perfectly entitled, balancing the various matters, to reach the decision to refuse an adjournment. It is quite clear that each of the applications was answered and it is also clear from the decision and what we have been told, that the final request for an adjournment on 28th April was in fact met by a fax. Quite simply, no appeal from that decision was entered to this tribunal. I venture to suggest that if it had been so it would not have succeeded. The appellant did not instruct his solicitors to attend on the hearing and to take such part in the proceedings. We do not consider that raises an arguable point of law. Mr Crosfill has adopted a realistic approach.

	We turn now to the second central contention in the grounds of appeal, namely that the applicant received a sum of £695.88 by way of redundancy payment and that should have been taken into account by the tribunal in making their award. There is a considerable degree of doubt as to whether that sum was ever paid. We have some rather ambiguous correspondence before us in which suggestions are made that the vendor of the business was making allowance against the contingent liability for redundancy payment. Despite the researches of Counsel, (I am including Mr Thomas who appears for the respondents to the appeal) there is no express finding on this issue by the tribunal. Although it is asserted that that sum was paid in the Notice of Appeal, it is only fair to say, that in the correspondence we have when the appellant’s solicitors by a letter of 28th April seeking an adjournment says:

“Mr. Gandhum would like to point out that at no time did he even refuse to pay Mrs. Hill her redundancy payment. ...”

which casts a doubt on the suggestion that he actually did pay. We cannot see that this raises an arguable point of law to go the full tribunal. There seems to be considerable ambiguity added as to whether or not, in any event, the factual basis of that can be made out by the appellant. The simple answer is we are not a fact finding body. If the appellant to this appeal has any evidence that can be put before the tribunal that Mrs Hill did receive her redundancy payment, then that would, if we may respectfully say so without binding them, be a proper matter to put before the Industrial Tribunal by way of review, notwithstanding the passage of time. If that is not the case, and there is no such evidence, then the matter lies where it stands. 

	There really are no arguable grounds for this matter to be pursued in this forum. If there are other matters then they are likely and more appropriately to be pursued by what would admittedly be a late application for a review.

	We have been assisted by Mr Thomas, Counsel for the respondent. We consider it is appropriate to grant Legal Aid taxation of the respondent’s costs.