MR D A WILLIAMSON v SCHENKER LTD [2001] UKEAT 1445_00_2303

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1445_00_2303

Case No Appeal No. EAT/1445/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D A WILLIAMSONAPPELLANT

SCHENKER LTDRESPONDENT

Before

Mr Justice Lindsay

Date 23 March 2001

[1]APPEARANCES For the Appellant JANE SWAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us a Preliminary Hearing of the appeal of Mr D A Williamson in the matter, Mr D A Williamson against Schenker Ltd, Schenker being the employer in the case. Today Miss Swan, under the ELAAS scheme, has appeared for Mr Williamson and, indeed, she had been his representative at the hearing below.

[2]On 21 August 2000 Mr Williamson presented an IT1 for deduction of wages. He said:

"Salary allowances which have been paid for the past 27 months suddenly stopped without any mutual agreement. Being asked to repay £7,427 (exclusive of tax). That this sum has been overpaid. Wrote company asking them to reinstate amount deducted. Company eventually had their solicitors Dale & Newbury wrote to me stating that if I do not make arrangements to repay outstanding sum that proceedings will commence against me."

I might add that we are not at all concerned with whether the company has a claim for any sum such as £7,427 odd against Mr Williamson; we are concerned only with deduction of wages.

[3]On 14 September last year the company put in an IT3 claiming that a mistake had been made. They said in their paragraph 7.3:

"The Respondent duly wrote to the Applicant on 16 February 1998 putting forward such an offer. In that letter it incorrectly referred to the salary being "£4,650.00 pro rata plus £350.00 per month travel reimbursement"

. It should have read "£4,650.00 pro rata plus £350.00 per quarter travel reimbursement" being a total of £5,000.00 for the quarter. The Respondent compounded its error by then paying a travel allowance of £350.00 per month to the Applicant through its payroll giving rise to an overpayment for the three months contract period of £1,050.00 (ie three months at £350.00). The Applicant still claimed his monthly train fare through petty cash." They said that it was not until the end of June 2000 that they noticed their error and they say in their 7.11:

"Accordingly the Respondent denies that it has improperly made a deduction from the Applicants wages, contrary to Section 13 of the Employment Rights Act 1996 but contends that the deduction was made under the provision of Section 14(1) of the Act and was therefore not unlawful."

So, a fairly short point but not necessarily an easy one. That went forward to a hearing on 28 September at the Employment Tribunal. It came before Mr A M Snelson, Chairman, sitting alone; I will come back to the point that he sat alone. The decision of the Tribunal was that the Applicant's claim under part 2 of the Employment Rights Act 1996 failed and the originating application was accordingly dismissed.

[4]On 24 November a pleasantly succinct notice of appeal was received from Mr Williamson and it says this: "The Chairman made his findings that Mrs Edwards the personal assistant to the Respondent's managing director had no authority to vary the employment agreement between the Applicant and the Respondent without hearing any evidence on that point, and his finding on this point was therefore both illogical and unfair. This finding was central to the Tribunal's conclusions that Appellant's employment with the Respondent was at all times governed by an oral agreement concluded in February 1998 and that there was no variation of the contract when Mrs Edwards assured the Appellant that certain payments included with his wages were correct, and it led the Tribunal to dismiss the Applicant's claim on the ground that there was no deduction from the Appellant's wages when the Respondent ceased to make those payments. The point about Mrs Edwards' authority to vary the oral contract of employment was, as it seems to us, not central as an issue in the case because the Employment Tribunal held additionally that the person concerned, Mrs Edwards, did not in fact vary the pre existing oral contract.

[5]Of the crucial meeting, the Tribunal said:

"In the first place it is important to stress the limited scope of my findings concerning the conversations between the Applicant and Mrs Edwards about the February 1998 pay statement. It was not suggested that there was any mention of the apparent discrepancy between the statement and the terms on which the Applicant had been (or believed he had been) engaged. Self evidently, it follows that there was no discussion about any variation of those terms. Then a little later he concludes the paragraph by saying: "

The evidence went no further than this. Mrs Edwards was asked to confirm whether the payment was correct [and that is a reference to the February 1998 pay statement ] and she gave her opinion that it was." True it is that in between those 2 passages which we have just cited the Chairman does say that Mrs Edwards had no authority to vary the oral contract but his conclusion that all she gave was her opinion, in comparison with there then and there being a variation of contract, is, as it seems to us, a point independent of the absence of authority. The Chairman is saying in effect: 1 she did not agree a variation, and 2 in any case, she had no authority to do so and if you strike out ground 2 you are still left with the conclusion of ground 1. The point is made again in paragraph 8.3 of the Tribunal's decision where the Chairman says this:

"The assurance of the part of Mrs Edwards that the February 1998 payment was correct did not operate to vary the original oral contract. Mrs Edwards had no actual or apparent authority to vary the agreement. Nor did she purport to do so. Nor did the Applicant understand her to be exercising any power to vary the original agreement. She did nothing more than to offer her opinion that the February 1998 payment was correct."

Looking at that, that, of course, includes clear findings of fact on the issue. The Tribunal went on:

"It follows that the parties remained bound at all times by the oral agreement."

That is the only point raised in the notice of appeal and it seems to us it fails on the facts and, of course, the Tribunal is the master of fact in a case such as this.

[6]Another ground raised by Miss Swan that is not mentioned in the notice of appeal, but which we accept nonetheless, is that it was wrong for the Chairman sitting alone to have persisted in a hearing once it had become clear that there were issues of fact; he should not have continued to hear it on his own. That seems to us not to be a submission that is open to Mr Williamson. In paragraph 3 of the extended reasons the Chairman says:

"The case was listed for a full merits hearing before me, sitting alone. Having in mind the strictures of the Employment Appeal Tribunal in recent cases such as Sogbetun v London Borough of Hackney (1998) IRLR 676 as to the need for cases involving substantial factual disputes to be heard by a full Tribunal, I wondered at the outset whether the case was suitable for hearing without lay members. Both advocates assured me that there was no real factual dispute and that they were entirely content for me to hear the case alone. I therefore exercised my discretion to do so. Then in his paragraph 7 he says: "

As I have mentioned, both advocates assured me at the outset that the case was suitable for me to hear alone, and that there was no significant dispute arising on the facts. Having heard these assurances, I was most surprised, well into the hearing, to be told by Mr Gray [he appeared for the company on the day] that it was part of his case to argue that the Applicant had been aware of the Respondent's error all along and that, in effect, he had acted dishonestly in accepting the overpayment and not disclosing it. Once aware that this serious allegation was being raised, I did consider whether the case should be adjourned even at that late stage for hearing by a full Tribunal. I decided against that course, for three reasons. First, although the allegation was a serious one (and, of course hotly disputed) it raised a single, relatively uncomplicated factual issue. Secondly, the case was by now well underway and an adjournment would have entailed a substantial waste of the Tribunal's resources and considerable cost to the parties. Thirdly, as already mentioned, both advocates had expressed themselves content that I should hear the case alone. On the substantive question of the Applicant's state of mind, I have reached clear view." He was quite satisfied, he goes on to say, that the allegation of dishonesty was quite unfounded. As against that background, it seems to me not proper for Mr Williamson or his advisers to raise a claim that the Chairman should not have either begun or persisted with the case as he did. The reasons that he gives for continuing nonetheless seem to be substantial and they represent an informed exercise of a discretion and we see no error of law involved in that.

[7]We are, of course, only concerned with errors of law and, doing the best we can and having heard Miss Swan's arguments, we have not been able to find an error of law, properly-so-called, in the issues which are sought to be raised on the Appellant's behalf. At this stage we are concerned to see whether there are arguable points of law and we have not found any and accordingly we must dismiss the appeal even at this preliminary stage.