(1) MISS S CASIERO (2) MR R BERLEVY v MISS M A ZUCCA [2000] UKEAT 849_00_0812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 849_00_0812Case No Appeal No. EAT/849/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MISS S CASIERO (2) MR R BERLEVYAPPELLANTMISS M A ZUCCARESPONDENT
Before
His Honour Judge J Altman Mr P A L ParkerDate 8 December 2000
[1]APPEARANCES For the Appellants No appearance or representation by or on behalf of the Appellants JUDGE J ALTMAN This is an appeal from the decision of the Employment Tribunal sitting at Bedford on 30 March and 4 May 2000, when the Chairman, sitting alone, made an Order awarding the Respondent £816.64 in respect of unpaid wages from 10 December 1999 to 12 January 2000.[2]The Appellants are unable to attend today A faxed message was received this morning and unfortunately some urgent matter has arisen which precludes Mr Berlevy being here. However we have had an opportunity of reading all the papers, and seeing the Notice of Appeal which sets out the basis on which the Appeal is sought, and it has seemed to us best to deal with the issues as they appear to us, so that finality can be achieved.[3]The hearing comes before us by way of a preliminary hearing to determine if there is a point of law capable of argument in full, before the Employment Appeal Tribunal.[4]The Chairman heard evidence, unsupported by any document, and he had to try to see what contract, if any, was to be construed from the evidence he heard. The Appellants were going to open a restaurant. They initially planned 10 December as the opening day. Unfortunately, the premises were not ready; the opening was repeatedly postponed. It appears that the restaurant opened on 8 January 2000.[5]The employment of the Respondent, as Second Chef, was terminated on 12 January. The Respondent contended that she had been employed from 10 December 1999, and that prior to opening, she attended some meetings, received a payment of £250 around Christmas time, and in January, received £100 for a few days' cleaning. She contended that during that time, she held herself in readiness for work, and was an employee during that period. The Appellants contended that the Respondent's employment did not commence until 8 January, and that everything before then was purely preparatory. They said that the £250 was a token of goodwill, paid before Christmas, and was not a wage, and that the £100 was a specific payment for a period of cleaning work, and that at all times up to 8 January, the Respondent was free to obtain other work elsewhere.[6]The Chairman found in favour of the Respondent and construed the contract of employment as commencing on 10 December at a wage of £250 per week which, with credit for the sums already paid, left a balance of the sum ordered by him to be paid.[7]The Appellants appeal on the following ground:
"We feel that the Chairman was incorrect with his decision to allow the Plaintiff to present a witness, (Ms Ulleri) without witness statements having been made available to the Appellants. A period of 14 days (min) is required."
We are not sure of the spelling of Ms Ulleri's name, from the written Notice of Appeal, and we apologise if it is incorrect.[8]After the first day of hearing, the proceedings were adjourned, and the Chairman took the opportunity to make a direction in the following terms:
"Any further witnesses who are to give evidence before the Tribunal whether on behalf of the (Respondents) or the (Appellants) shall prepare a written statement which contains all the evidence which the individual is to give at the hearing. The parties should have available at the hearing, typed or legibly written statement for these witnesses, which statements should be exchanged between the parties at least seven days prior to the resumed hearing. Three copies of each statement should be available to the Tribunal on the day of the hearing for the Tribunal's use."
[9]The Chairman wrote to the Employment Appeal Tribunal on 19 July, to clarify what actually happened. He wrote this:
"1) No witnesses who gave evidence before the Tribunal provided witness statements. 2) The witness Miss Ulleri gave evidence on the first day of the hearing on 30 March 2000. The Chairman gave directions on the adjournment of that day's hearing for witness statements to be provided and exchanged for all witnesses who were to give evidence at the resumed hearing. 3) At the resumed hearing of 4 May, 2000 the Tribunal only heard evidence from the Appellant's witnesses who, in the event, had not provided witness statements."
[10]It is general practice for witness statements to be exchanged in advance, if possible. There is no general rule that failure to do so will prevent that witness from giving evidence necessarily, and there was a specific rule in this case for service of statements. However, there was no order that failure to serve such a statement in this case would prevent a witness from being called.[11]We can understand the difficulty which arises when, at the outset of the hearing, a witness gives evidence for which the opposing parties are unprepared. However, there was no arguable error of law, on the part of the Chairman, in proceeding the way he did. Indeed, there seems to have been an equality of approach and even-handedness in that the Appellants' evidence was heard without their having previously served witness statements.[12]The only appeal lies on a point of law; there being clearly no error of law in the approach of the Tribunal to these proceedings, there can be no arguable appeal to the Employment Appeal Tribunal and it falls to be dismissed at this stage.