MR G WALLACE v COLIN JACKSON T/A COLIN JACKSON & SONS [1999] UKEAT 1054_98_0807
[1]APPEARANCES For the Appellant MR N WOODHOUSE (of Counsel) Leigh and District CAB 6 The Avenue Leigh Lancashire WN7 1ES For the Respondents THE RESPONDENTS NEITHER BEING PRESENT NOR REPRESENTED MR JUSTICE MORISON: The Appellant wishes to amend his Notice of Appeal. This amendment was foreshadowed when the matter was before the Court on 13 January 1999. Having looked at the application I am satisfied that it would be right that the application should be granted and the matter is to proceed to a full hearing in relation to the matters which were originally in the Notice of Appeal together with those which are there by way of amendment. The Appellant also asked for Notes of Evidence. The application was based on two reasons as I understand it. The first relates to paragraph 7 of the amended notice and grounds of appeal which is a contention that the Employment Tribunal failed to take into account properly, or at all, various payslips before it which indicated that the deductions which had been made were different from those set out in the Respondents schedule. As it seems to me, the point that the Tribunal failed to deal with discrepancies between the payslips and the schedule of deduction is a discrete point which can be made as the decision stands. What Counsel, Mr Woodhouse, is concerned about, is that the Respondent may in due course say that payslips were not produced or these payslips were not produced to the Employment Tribunal and therefore the Tribunal could not have been required to take them into account.[2]Attempts have been made to contact the Respondent to find out whether that is his position, but without effect. It seems to me as the case stands at the moment that unless the Respondent were to take this point in the answer which he is to file in relation to the amended notice and grounds of appeal, Notes of Evidence will not be required because it may be assumed that the Applicant presented to the Employment Tribunal payslips which he will ask the Employment Appeal Tribunal to look at.[3]The second ground on which Notes of Evidence were said to be required related to a legal point in relation to section 22(1)(a) of the 1996 Employment Rights Act. What Counsel is concerned about is whether there will be any dispute as to what was meant by the Applicant's "week in hand". As I understand that expression and as Counsel was submitting to me, a week in hand stems from the fact that the employee was not paid for the first week of this employment and thus his pay was held in hand. On that assumption and basis, Notes of Evidence would not be required to amplify what the Tribunal Chairman meant by this expression. Again , if this turns out to be an issue as a result of reading the Respondent's amended answer to this amended Notice of Appeal, then the question of Notes of Evidence can be reviewed.[4]It is the experience of this Court that Notes of Evidence are often not helpful and even when they have been provided at great difficulty, then they are not referred to and are not material in the full hearing of the appeal. I am reluctant to ask any Chairman to produce his Notes of Evidence unless they are absolutely necessary and at the moment I am not persuaded that they are absolutely necessary for the determination of this appeal on the basis that I have indicated. Accordingly, no Notes of Evidence.[5]I make a direction that the Respondents file an answer within 21 days from the date of this order. I shall defer drawing up the order until I have corrected the judgment in this case so that the order and the judgment will go out together.