MR MOHAMMAD JAVED v MISS L RATCLIFFE [2000] UKEAT 298_00_1705

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 298_00_1705Case No Appeal No. EAT/298/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR MOHAMMAD JAVEDAPPELLANTMISS L RATCLIFFERESPONDENT
Before
His Honour Judge Peter Clark Ms S R Corby Mr P A L ParkerDate 17 May 2000
[1]APPEARANCES For the Appellant The Appellant neither present nor represented JUDGE CLARK By a decision promulgated with extended reason on 7 February 2000, following a hearing held on 26 January at which both parties attended in person, the Newcastle Employment Tribunal upheld the Applicant, Miss Ratcliffe's complaints, brought against her former employer, Mohammed Javed, as follows:
"(1) The applicant was unfairly dismissed for a reason connected with the national minimum wage namely an inadmissible reason and the respondent shall pay to the applicant compensation of £696.80 for unfair dismissal. (2) The respondent has unlawfully deducted pay from the applicant by failure to pay the national minimum wage and is ordered to pay to the applicant the sum of £422.50 (3) The respondent has wrongfully deducted pay from wages by failure to give holiday pay to the applicant and the respondent must pay the applicant the sum of £241.50. (4) The applicant is entitled to damages for breach on contract by failure of the respondent to give her notice or pay monies in lieu of notice and the respondent is ordered to pay the applicant the sum of £82.80. The total payment from the respondent to the applicant is £1,443.20."
[2]The background is that the Applicant was employed as a part-time worker at the Respondents store. The Employment Tribunal found that she worked 23 – 24 hours per week at an hourly rate of £2. They also found that the Applicant was dismissed by the Respondent on the 20 May 1999 because she then qualified for the National Minimum Wage which the Respondent was not prepared to pay. Her dismissal was therefore automatically unfair under Section 104(A) of the Employment Rights Act 1996. In addition the Respondent had failed to pay her in accordance with the NMW from its inception on 1 April 1999, had failed to pay holiday pay and had failed to give her proper notice of termination of the employment or payment in lieu thereof.[3]Against that decision Mr Javed now appeals. This is a preliminary hearing held to determine whether or not the appeal raises any arguably point or points of law which ought to proceed to a full appeal hearing. He has indicated that he will not be attending this hearing because London is too far for him. He lives in Stanley, Co Durham. Accordingly we have considered his grounds of appeal attached to a Notice of Appeal dated 10 March 2000. Those grounds begin with the words; "I am appealing against the tribunal decision because it is not factually correct."[4]Appeals to the Employment Appeal Tribunal are on a point of law only. We cannot retry the facts. The thrust of the appeal is first, that the Applicant's dismissal was due to her poor timekeeping and not for any reason connected with the NMW. That is an attempt to challenge the Employment Tribunal's factual findings as to the reason for dismissal. We cannot entertain that challenge. We repeat, appeals to the Employment Appeal Tribunal are on questions of law only.[5]Secondly he alleges bias on the part of the Employment Tribunal. In support of that claim he has filed a document dated 5 April 2000 which is headed Affidavit. In fact it is not a sworn affidavit, but a statement witnessed by aFE Jackson. Nevertheless, we shall treat that as a statement for the purpose of paragraph 9(3) of the Employment Appeal Tribunal Practice Direction. In that statement he says first, that the original hearing did not take into account his side of the argument about the reasons why Miss Ratcliffe was dismissed and it was factually correct. This was evident in the amount of questions put to him compared to those put to Miss Ratcliffe. Of course, it is quite right to say that at the end of the hearing the Employment Tribunal took the side of Miss Ratcliffe in the sense that they accepted her case and rejected that of Mr Javed. That is precisely the function of Employment Tribunals and no question of bias or the appearance of bias arises because they have ultimately preferred one party's case to the others.[6]His statement then continues by making factual points as to the Applicant planning her dismissal, so as to take advantage of the fact that he does not speak/understand English and is black. In answer to that statement the Chairman of the Tribunal Mr Speker wrote to this Appeal Tribunal on 8 May 2000, first, making the point that the Employment Tribunal heard evidence from both the Applicant and Respondent and reached findings of fact based on what was said by both sides. In the course of those findings they rejected Mr Javed's submission that the Applicant deliberately manipulated her own dismissal.[7]Having considered the points raised in Mr Javed's Notice of Appeal and further statement, we have concluded that no arguable point of law is there raised. Accordingly this appeal must be dismissed.