MOHAMMED ABDUL HAMID v VICTIM SUPPORT SOUTHALL [2002] UKEAT 1465_01_1406

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1465_01_1406Case No Appeal No. EAT/1465/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MOHAMMED ABDUL HAMIDAPPELLANTVICTIM SUPPORT SOUTHALLRESPONDENT
Before
Mrs Recorder CoxDate 14 June 2002
[1]APPEARANCES For the Appellant MR S CRAMSIE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MRS RECORDER COX QC In this appeal, which comes before us today by way of a Preliminary Hearing, Mohammed Hamid, the Appellant, seeks to appeal from a decision of the Watford Employment Tribunal, the Chairman sitting alone, which was promulgated on 16 October 2001.[2]The Appellant was a Co-ordinator employed by Victim Support Southall, an unincorporated association whose purposes are exclusively charitable. He complained of unpaid wages due to him on the date that he retired from his employment on 18 February 2000. The Tribunal decided that his claim succeeded only in part, that is in relation to his claim for holiday pay for the holiday year in which he retired and which was not taken at the time of his retirement. His other claims in relation to holiday pay and pay for time off in lieu failed. Subsequently, Mr Hamid sought a review of the Tribunal's decision. In a couple of minor respects the Chairman accepted that there were some inaccuracies in the decision and corrected them. The other grounds raised in the application for a review were all rejected and the application was refused. That refusal does not raise any issues which concern us this morning.[3]Today, Mr Hamid has had the benefit of assistance from Mr Cramsie, through the ELAAS Scheme, and on Mr Hamid's behalf he has told us that Mr Hamid now seeks to pursue an appeal only in relation to those parts of the holiday pay claim which were disallowed by the Employment Tribunal. There are two grounds sought to be relied on in that respect.[4]The first relates to the Tribunal's finding at paragraph 16 of their decision, where the Tribunal found that the Applicant was maintaining that there had been a meeting of the Management Committee on 8 December 1999, when there was an agreement reached as to an extra amount of holiday to which Mr Hamid was going to be entitled. The Tribunal found against Mr Hamid on that issue. The way that the matter is put this morning is this. Mr Cramsie says that, at the time he was before the Tribunal he was unrepresented, he had anticipated that the employers would call other Management Committee members, aside from Mr Moss who was called alone to deal with the matter, he was not aware as to how to deal with the situation in the absence of other members of the committee and having since talked to some other members of the committee he considers that their evidence would have supported his case on this issue. As we understand it therefore, it is suggested that we should allow fresh evidence to be given in order for that matter to be raised.[5]We are not persuaded by that submission and we are not persuaded that there is any basis on which we can now properly admit that fresh evidence. The test for admissibility of fresh evidence is of course that laid down in the case of Wileman v Minilec Engineering Ltd [1988] ICR 318. Before we can admit such evidence, the evidence must have become available only since the hearing, it must be such that it could not have been obtained with reasonable diligence for use at the hearing, it must be apparently credible and it must be such that it would probably have an important influence on the result, although it need not be decisive. On the information which Mr Cramsie has laid before us today we are not satisfied that any of those tests is met. Therefore we are not persuaded that there is any arguable point of law to be raised in relation to that one ground of fresh evidence.[6]The other ground which is sought to be pursued is in relation to the way in which the Tribunal dealt with the carrying over of holiday issue. The Appellant's case was that he was entitled to carry over holiday from one year to the next. There were two bases for his contention. The first, was that he contended there was an agreement in October 1997 at a Management Committee meeting at which the committee agreed that the holiday pay should be carried over. We are told by Mr Cramsie that it is accepted, however, that this is a matter which has been dealt with by the Tribunal in paragraph 20 of their decision. On this issue there was a finding of fact against Mr Hamid and it is not suggested that any error can be identified in relation to the Tribunal's finding of fact in that paragraph.[7]However, the second basis for Mr Hamid's complaint was in relation to the question of custom and practice. Mr Hamid had claimed that it had long been the practice of both himself and another employee to carry over holiday for many years and that his employers knew about this and that therefore by virtue of custom and practice there was an implied variation of his contract entitling him to carry over holiday in the way for which he contended.[8]On this one point we are all agreed that there is an arguable error of law which should therefore proceed for Full Hearing by this Tribunal. The relevant finding of the Tribunal appears in paragraph 21 of their decision in which they state as follows:
"For the reasons stated in paragraphs 18 and 19 above, the Tribunal concluded that the custom and practice on which the Applicant sought to rely was insufficient to justify the implication of a right to carry over unused holiday entitlements from one year to the next, and that the Applicant had had no right to carry over any such entitlement in respect of the holiday year 1999-2000 given that there had been no agreement on the part of the Chairman of the Respondent's Management Committee for him to do so."
However, when one goes back to paragraph 18, one sees in that paragraph only a reference in sub-paragraph (3) to the fact that holiday entitlement had been carried over in practice without the agreement of any authorised member of the Respondent's Management Committee or by that Committee itself. There is no finding in that paragraph as to knowledge on the part of the Management Committee. Indeed, in paragraph 20 the reference to the quotation in that paragraph, namely: "Allan [Holland] agreed to prepare procedures for leave covering the maximum period taken at one time and the maximum amount to be carried over to the following year." suggests that the employers did indeed know about the practice and were making arrangements to deal with it.[9]We are therefore persuaded, having heard from Mr Cramsie, that there is an arguable error in relation to the custom and practice point upon which he addressed us and that alone should proceed to a Full Hearing. The other points argued before us this morning do not persuade us and those are dismissed. Mrs Recorder Cox QC Mr Cramsie, that being so, obviously what we will need now is for amendments to the Notice of Appeal to be drafted and filed with this court, can we say 14 days? Mr Cramsie Yes you can. Mrs Recorder Cox QC We also take the view that it would be very useful to have in the bundle for the Tribunal that hears this appeal on that issue all the documentation relating to the carry over issue that was before the Tribunal, and we would have thought, the Chairman's notes which deal with that specific carry over issue, in order that the matter can be satisfactorily dealt with. So we make that order. Would you agree that half a day is a realistic estimate for this hearing? Mr Cramsie I think that should be plenty. Mrs Recorder Cox QC Thank you, we will say half a day at Category C and the usual order in relation to skeleton arguments.