NATHAN & CHELVA v MR A E MEHMOOD [1999] UKEAT 660_99_1310

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 660_99_1310

Case No Appeal No. EAT/660/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

NATHAN & CHELVAAPPELLANT

MR A E MEHMOODRESPONDENT

Before

His Honour Judge J Hicks

Date 13 October 1999

[1]APPEARANCES For the Appellants MR V COORAY (of Counsel) Instructed by Messrs Nathan & Chelva Solicitors 169 Tooting High Street London SW17 0SY JUDGE HICKS: The Respondent to this appeal, Mr Mehmood, worked for the Appellant firm of solicitors, and that came to an end in circumstances which are of no concern to us as far as this appeal is concerned. The Employment Tribunal dealt with his applications for unfair dismissal and breach of contract and unpaid wages but dismissed the complaint of unfair dismissal, the Applicant not having been employed for a continuous period of two years. They found the claim for breach of contract and unpaid wages well founded to an extent set out in their reasons, promulgated on 20 August 1998, but although those reasons reached conclusions about certain sums of money that in consequence were due from the Appellant's to Mr Mehmood other matters could not be decided or quantified, as the Tribunal found, without a further hearing dealing with the outstanding issues of remedy. What happened after that was that there was a series of adjournments, either without the attendance of the parties at all or because they attended and were not in a position to proceed, and in the course of those procedures certain directions were given by the Employment Tribunal. The precise dates are that after the promulgation of the original decision there was an adjournment to 30 October 1998, which was intended to be the hearing as to remedy, but on that date neither party was ready to proceed and in those circumstances the Tribunal gave directions calculated to ensure that everything would be ready for a further adjourned hearing date on 26 January 1999. On 26 January 1999, however, the parties had agreed that they should ask for a further adjournment and did not even attend and the Tribunal acceded to that joint application and adjourned the matter to 25 February 1999, when there was the hearing which resulted in the decision of the Tribunal now under appeal before us.

[2]At the outset of that hearing the employers applied for yet a further adjournment. The Tribunal found that there had been, to all intents and purposes, no progress whatsoever in carrying out its earlier directions. It found the employers in flagrant breach of its earlier order, which was an order, as the Tribunal noted, made in the employer's presence and with their express agreement. It was true, and the Tribunal took into account, that there had also been failures on the part of the Applicant, but the Applicant was nevertheless ready to proceed and had some evidence and had done some calculations which went towards the questions of remedy which the Tribunal had to decide and in all the circumstances the Tribunal decided that it was in the interest of justice to proceed with the hearing and to reject the employer's application for an adjournment.

[3]It is convenient to take first, although they come rather towards the end of the grounds of appeal, the grounds of appeal which in various ways attack that decision and which, as Mr Cooray for the employers submits, should have led to the granting of an adjournment to the Respondent. He points out, and as I have said the Tribunal had in mind, that the delay had not only been one-sided. He says that there were excuses for the Respondents' delay, namely discussions as to the possibility of a settlement, and that this was by no means the worse case of delay or failure to comply with procedural directions. The last point, it seems to us, is really directed to a totally different decision than the one the Tribunal actually made. This was not a striking-out case. The Respondent was not being punished in that or any other direct way for its failures. Its failures were simply one of the matters which the Tribunal took into account in deciding whether there should be an adjournment.

[4]Deciding whether there should be an adjournment is of course a discretionary matter for the Tribunal. In order to question it in this Court it is necessary to show that it was wrong in law, that is to say that the Tribunal took into account some irrelevant fact or failed to take into account some relevant fact or was perverse. It is quite plain to us that this decision cannot successfully be attacked in any of those ways and it is not arguable that it can and we therefore reject those grounds of appeal.

[5]Going back then to substantive matters, Mr Cooray's first submission, which arises under grounds (a) and (b) of the appeal, is that:

"It is unclear how the Employment Tribunal reached the figure of £5,700 which it ordered the Respondent to pay."

There are two limbs to that. The second, as Mr Cooray agrees, has no substance in it. It arises because having reached a finding as to one of the elements of the award of £4,500 the summary in paragraph 22 of the Tribunal's reasons inserts, instead of £4,500, the figure £4,900. But the fact is that that is clearly an irrelevant clerical slip because the total is the correct total if the correct figure of £4,500 is used. So, as Mr Cooray accepts, there is nothing in that point. The point that he does argue under this head is that having in paragraph 15 of its reasons accepted in substance the evidence of the Applicant, Mr Mehmood, as to the way in which his claim for a particular period for bonus and commission should be calculated, and having arrived at a calculated sum of £5,120, the Tribunal then in paragraph 17 say this:

"The Respondent [that is the employers] has given certain oral evidence regarding the gross turnover of the firm for the period since 1992. It is to be noted that it has only been subsequent to this remedy hearing that the Respondent has proffered bank statements and annual accounts: these were not taken into account on 25 February [that is the date of the hearing]. While the Tribunal has some difficulty that the Respondent's evidence was unsubstantiated and while it found it difficult to reconcile with other evidence available to the Tribunal, the Tribunal had decided that some adjustments should be made to ensure that its award is not inconsistent with the realities of the business and to ensure that it is thereby fair to each of the parties. In the absence of full annotated evidence, the Tribunal has decided that the sum payable in respect of this current period shall be reduced to the sum of £4,500, payable by the Respondent to the Applicant."

[6]It rather looks from that as if the Tribunal in fact took into account in the Respondent's favour documentation produced after the date of the hearing. But there is no cross appeal by the Appellant and we do not therefore have to go into that point. What is quite clear is that having, on evidence which it was perfectly entitled to accept, arrived at £5,120, the Tribunal on very unsatisfactory, as it found, evidence from the employers nevertheless gave some effect to that evidence by making a reduction. In the circumstances the fact that the reduction is to a round sum and is not further quantified or explained is a consequence of the way the employer presented its evidence, not any defect of understanding or error of law on the part of the Tribunal. We see no arguable ground of appeal under this head.

[7]The next submission arises in this way. In its original decision, largely dealing with liability but embarking on remedy to the extent to which the Tribunal was then able to do, the Tribunal had found in respect of a certain period that a sum of £1,200 was due, but had then gone on to say:

"However, in respect of this period, and subject to any further evidence in respect of this period only, the Tribunal decides that the Respondent was entitled within the provisions of Section 13 of the 1996 Act to make deductions in respect of loans granted to the Applicant in respect of the LPC Staffordshire University fees. It seems therefore (again subject to any further evidence the parties may wish to provide to the Tribunal) that the Respondent was entitled to make deductions up to a figure in excess of £3,500: this being a larger sum than the sum of £1,200, in net terms it is the conclusion of the Tribunal in respect of this period that the Applicant's complaint is (in net terms) not well-founded."

And therefore no sum was awarded.

[8]In the reasons for the later remedies decision, the Tribunal says - and this is what is attacked - in paragraph 14, having referred to that earlier conclusion:

"Now that the approach of the Tribunal has been modified and that a different sum has been set off against those University fees, it is appropriate to note that having found that the deduction in respect of £1,200 was well-founded that sum remains due and payable by the Respondent to the Applicant."

And so the £1,200 is included in the total awarded.

[9]Mr Cooray's complaint is that the "different sum", which the Tribunal says has been set off against the University fees, has not been identified. The answer to that is that it is identified, because paragraph 13, the immediately preceding paragraph, says:

"We decide on the evidence and in all the circumstances that the Applicant's claim in respect of commission [and this is in relation to a different period] is well-founded, but that after taking into account the LPC Staffordshire University Fees as well as the wages actually paid, in respect of this period there is a nil residual entitlement, subject as below."

It is not for us of course to go into the facts and evidence. We are simply dealing with whether the Tribunal erred in law and the criticism that they do not identify the "different sum", which is now the subject of the set-off, is plainly answered by that paragraph. They do identify the different sum and there is nothing therefore in this ground of appeal.

[10]There is next a point raised by Mr Cooray that some of the periods in respect of which the Employment Tribunal made awards were, as he put it, 'out of time' and that the Tribunal therefore had no jurisdiction to grant those awards. We are not clear how far-reaching this point is and whether it goes to matters dealt with in the original unappealed decision as well as the later remedies decision, but it is not necessary to go into that sort of detail because what is absolutely clear and accepted by Mr Cooray is that no such point was raised at either of those hearings or in the Notice of Appeal.

[11]Mr Cooray drew attention to head (c) of the Notice of Appeal which reads:

"The status or position of the Respondent in the Appellant's office was misinterpreted by the employment tribunal."

But that cannot possibly cover the ground which he now seeks to advance. He therefore accepts that he needs to apply for leave to amend and in our view it would be quite wrong to grant such leave at this stage when the point has never been raised before. We say that having taken into account his point that, this being a matter of jurisdiction, if the amendment were allowed and that ground before this Tribunal, then it would be at least arguable that as a jurisdiction point the failure to argue it below might not be fatal. But, as we have said, we can see no ground on which we should allow an amendment which would raise such a point for the first time at this late stage.

[12]Finally Mr Cooray submits that the Tribunal should not have accepted the Applicant's figure of £46.50 per hour as the rate at which to value his work. He says that because that is referred to in the Tribunal's reasons as the "legal aid" figure and he says (although whether this was ever in evidence before the Tribunal or ever argued we know not; there is no trace of it in the Tribunal's reasons) that is the rate allowed by the legal aid board for qualified solicitors and Mr Mehmood was not qualified. Quite apart from the question whether this point was raised below and is therefore arguable here it seems to us that it misunderstands the way in which this figure was used. Mr Mehmood was not, as we understand the Tribunal's reasons and indeed the likely background facts, saying that this was the right figure because his work was wholly legal aid work and that was the figure which would be allowed by the legal aid board. He was saying that this was a reasonable sum to take as a way of assessing the value of his work and the Tribunal accepted that. There is no indication in the reasons that the Respondent actually challenged that point. As we have said its attack, so far as it ever did address itself to the question of quantum, seems to have turned on evidence about the gross turnover and presumably general arguments from the gross turnover to the proportion which could be attributed to Mr Mehmood, by way of attacking his overall figures in that rather general way. But this was a matter of fact for the Employment Tribunal. We see no error of law in the fact that in the state of the evidence before it it accepted Mr Mehmood's hourly figure and we reject that as an arguable ground of appeal.

[13]That disposes of the matters that were raised before us and we therefore come to the conclusion that none of them raises an arguable ground of appeal and that the appeal should therefore be dismissed at this stage.