MR & MRS GALE T/A COUNTRY HARVEST v (1) MRS J W LANNA (2) MR G LANNA [2002] UKEAT 1207_01_2503

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1207_01_2503

Case No Appeal No. EAT/1207/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR & MRS GALE T/A COUNTRY HARVESTAPPELLANT

(1) MRS J W LANNA (2) MR G LANNARESPONDENT

Before

Mr Justice Lindsay

Date 25 March 2002

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us a Preliminary Hearing of the appeal of Mr and Mrs Gale, the erstwhile employers. No one appears for Mr or Mrs Gale. Enquiries have been made; nothing suggests that they have set out and have been stopped from coming by bad transport or anything of that nature. It looks as if there was a decision not to attend today and so we will go ahead without representation on their part. The ELAAS representative who would have helped them had they attended, of course, cannot help them if they do not attend. I understand that that had been made clear to Mr and Mrs Gale.

[2]The position is that on 9 March 2000 Giancarlo Lanna lodged an IT1 for breach of contract, unlawful deduction from wages and National Minimum Wage. He said he had been employed from 21 May 1999 to 17 December 1999. He had solicitors acting for him. He set out in some detail the hours which he said he had worked before he had been dismissed, when the business was sold on 17 December 1999. He said:

"The Applicant contends that he was due notice pay at a rate of £3.60 an hour for 57½ hour week amounting in total to £207. The Applicant received no notice monies when he was dismissed."

A little later he says:

"The Applicant contends that he was entitled to receive holiday pay at a rate of £41.40 per day, making a total of £248.40 The Applicant contends that pursuant to the Minimum Wage Act he should have received a payment of £3.60 per hour. However, the applicant received a sum of £100 net per week. The Applicant contends that he was employed for a period of 30 weeks and received the sum of £3,000 from the Respondents. The Applicant claims he is entitled to 30 weeks at £207.00 per week making a total of £6,210.00 Less £3,000.00 already received making a total claim of £3,210.00 in respect of unpaid wages."

It is not altogether clear, but it would seem that Mrs Lanna put in an IT1 as well; the one that we have is in fact just from Mr Lanna.

[3]On 24 March the Employment Tribunal received an IT3. It was from Mr Gale only. He said that he had been the employer, that Mr and Mrs Lanna had been given, and had agreed to work out, their notice. He said:

"Mr Gale would dispute the hours of work cited by the Applicant, Mrs Lanna. No specific hours of work were agreed and the Lannas agreed to undertake the work for a fixed salary of £200 per week. There was no requirement that they work specific hours."

Mr Gale set out his view of the hours which had been worked. He said:

"Mr Gale puts Mrs Lanna to strict proof of the hours worked."

A little later he said:

"Mr Gale puts Mr Lanna to strict proof of the hours worked."

It was admitted, in effect, that some holiday pay was due, and, it would seem, one week's notice pay.

[4]On 5 February 2001 and 27 July 2001 there was a hearing at the Employment Tribunal. The Applicants, Mr and Mrs Lanna, were represented by counsel and the Respondents, the erstwhile employers, by Mr Gale in person. So far as the listing of the case is concerned it continued to have two Applicants and two Respondents. On 23 August 2001 the decision was sent to the parties. It was the decision of the Tribunal at Thornaby on Tees under the Chairmanship of Mr J R Barton. It was a unanimous decision and was that:

"The Applicants' claim for breach of contract, unlawful deduction from wages, failure to pay the National Minimum Wage and failure to provide itemised pay statements are well founded. The Respondent is ordered to pay to Mrs Lanna the sum of £796.26 in compensation, and to Mr Lanna the sum of £2,766.90 in compensation."

The Tribunal said, in their paragraph 4(e):

"The respondents did not accept that the applicants' hours were correctly stated by them. The applicants were cross-examined as to the hours they worked and their duties. While we were satisfied that the respondents visited the premises at certain times, they were not there for much of the time claimed to have been worked by the applicants. They have not produced any verifiable records to dispute the applicants' case in this respect, despite their responsibility under the National Minimum Wage Act legislation to do so. From this evidence, the answers given to the respondents in cross-examination and answers also given to the Tribunal in its questions, we were satisfied on a balance of probability that the hours claimed to have been worked by the applicants were in fact worked."

The Employment Tribunal then set out their calculation, having made a deduction in Mr Gale's favour which he had not even argued for.

[5]On 5 September 2001 the Employment Appeal Tribunal received a Notice of Appeal that said in paragraph 6 (namely, the printed part in which the Appellant is to set out the grounds) that the Tribunal below had believed the lies under "oath" of Mr and Mrs Lanna, attributing to the hours of work, and also that new evidence had become available. It was such a vague Notice of Appeal that the Employment Appeal Tribunal on 17 September asked for further details. That letter warned that:

"In addition, you state in the Notice of Appeal that "new evidence has become available"

. You should be advised that new evidence is a matter for the Employment Tribunal, by way of an application for review to the Employment Tribunal. Anything that was not before the Employment Tribunal is not automatically admissible at the EAT." Mr Gale answered shortly afterwards; the letter was received on 1 October 2001. He said:

"With reference to new evidence Mr C McNamme who was residing at the Black Bull, Great Smeaton, during the time Mr & Mrs Lanna were running the Public House, has been located and he can confirm the hours operated by them. As regards the point of law upon which this appeal is found I think that lieing [lying] under oath is a good reason."

That is the background to the appeal.

[6]There are two points really. As to lying under oath, it is for the Employment Tribunal to decide what evidence to believe and what not to believe. On questions of fact such as that they are the masters. We can only deal with errors of law. It is no error of law of a Tribunal to accept evidence which the Appellant thinks should not have been accepted. It is part of the Tribunal's job to decide what evidence to accept. The "lying under oath" allegation takes Mr Gale no further.

[7]So far as concerns the reception of new evidence, it is incumbent on an Appellant relying on that ground to satisfy the Employment Appeal Tribunal, firstly, that the new evidence could not have been obtained and produced by the time of the hearing even if diligent attempts to obtain it and produce it had been made; secondly, that it appears to be credible evidence and, thirdly, that it would be likely to have affected the result of the hearing below. Those are features which cannot simply be assumed on the basis of mere assertion. They need to be proved, especially the first one, namely, that the evidence could not have been obtained even had due diligence been applied earlier.

[8]We have nothing that can satisfy us on those three points. There is nothing to show that Mr McNamme could not have been approached earlier if he had been diligently looked for. There is nothing to suggest that, for example, he had refused to give his evidence earlier but gave it later. There is no other explanation of how it is that his evidence is available now but was not available earlier. Nor do we have anything from Mr McNamme by which we can judge its credibility. So of the three points – and all three have to be satisfied by an Appellant – at least two are missing. Thus, the ground "reliance upon new evidence" is not made good. In other words, of the two grounds that Mr Gale raises, neither is made good before us today. Striving, as we have done, to see if we can find some arguable point of law, we have found none, so we must dismiss the appeal even at this preliminary stage.