MR R KERR v LABOUR LINKS LIMITED [2008] UKEAT 0589_07_0905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0589_07_0905Case No Appeal No. UKEAT/0589/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R KERRAPPELLANTLABOUR LINKS LIMITEDRESPONDENT
Before
His Honour Judge McMullenDate 9 May 2008
[1]APPEARANCES For the Appellant MR R KERR (The Appellant in Person) For the Respondent Respondent debarred SUMMARY Unlawful deduction from Wages The Employment Judge upheld the Claimant's claim for wages in part and awarded £700 odd. He contended he was not given the chance to produce documents. The Employment Judge was asked by the EAT to look again at her calculations and confirmed them. There was no error of law in her sums, based not only on documents but of her appreciation of the evidence given by the Claimant. Application to adduce fresh evidence refused. HIS HONOUR JUDGE McMULLEN QC This case arises from a claim for unlawful deductions in that the correct amount of pay was said not to have been paid. I will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against the judgment of Employment Judge Hill, sitting alone at Reading, registered with reasons on 15 September 2007.[3]The Claimant represented himself. The Respondent was not represented and played no part, nor in the EAT, for it was debarred. The essence of the Claimant's case is that as a labourer on a rate of £7.25, the calculations which he produced to the Employment Judge (Chairman) ought to have given a figure in excess of the sum of £725.25 which he proved that he was owed for a period of work from 18 March and 6 May 2007.[4]On the sift of the Notice of Appeal, it occurred to HHJ Serota QC that further material should be sought from the Employment

Judge as to the way in which she approached her task and these questions were asked and answered:

"1. Did the Chairman take notice of the fact the claimant said he was not paid for the weeks ending 18 and 25 March 2007? In reaching the conclusions set out in the Judgment, the Chairman conducted a thorough examination of all the documents put before by the Claimant including the assertion of missing payments for those weeks. The way in which the matter was approached is set out in paragraphs 6 – 8 of the reasons. My conclusions from the examination of the books and records are set out in paragraph 10. I reached the view that the claimant, despite what he thought, had been paid for those weeks. 2. Did the Chairman take account of the fact that for Saturday working the claimant would be paid time and a half? The claimant produced a lengthy breakdown of how much he considered he should be paid and why. This, to my recollection, included the enhanced rate of payment for Saturdays. This formed the basis of the calculations. The number of hours worked, as submitted by the claimant, was based on the hours claimed and identified which of those hours were overtime. At no point in my calculations of the amount due was the figure markedly different from the claimant's. Clearly, therefore, the basis on which I did the calculations was an accurate reflection of the total hours claimed. The answer to the questions is therefore yes, as the number of hours worked was based on the claimant's own information."
In the light of that, the case was further sifted to a full hearing by HHJ Peter Clark.[5]An application is made before me for the introduction of new evidence. I bear in mind that the Respondent is not here to express a view about the material but it is plain that the documents were available at the time of the hearing. So, the new evidence does not satisfy the test in paragraph 5 of Judge Clark's order that the material could not have been produced with reasonable diligence at the Employment Tribunal.[6]I agree it is, apparently, credible. It does appear to be relevant but I cannot say that it would have an important influence on the result of the claim. MR KERR: Excuse me, Judge.[7]It must be borne in mind that the Claimant succeeded and the judge has again looked week-by-week at the material which he has produced.[8]I agree that at least in respect of the week 18 to 25 March there appears to have been a mistake in the judge's reasoning, for 16 March appears where 14 March should not have appeared. MR KERR: I am sorry sir, but if you take it into account sir that ... [Audio cuts out][9]The proposition advanced by the Claimant was that he was not given an opportunity to give evidence. I do not accept that. The Chairman, in her judgment, refers to oral evidence and I have tested that proposition by asking him what occurred. I am satisfied that he did give evidence albeit that after taking the affirmation he did not sit in the witness chair but sat in the place where the Claimant sits. It is plain to me that he did give evidence both orally and in writing as to the documentation he produced.

The judge was required to take a view … HIS HONOUR JUDGE McMULLEN QC :

[10]Mr Kerr if you do not be quiet I'll have you put out. MR KERR: But, sir I … [Audio cuts out] … about the additional reasons which the Employment Judge produced. There is a disagreement between what the calculations show and what the Claimant thinks he is due. The Employment Judge has attempted to resolve the factual issues before her. When I asked him to show me on a single piece of paper where it was the Employment Judge went wrong so that I could substitute correct figures for her incorrect figures, I received no reply.[11]So, even if I were minded to allow the new material, it will not resolve the dispute in this case. The Employment Judge was engaged, albeit without the Respondent there, in an exercise in appreciation of the paperwork and of the oral evidence of the Claimant and to a large extent he succeeded.[12]If I were in doubt, I would remit it to the judge but it seems to me that this is throwing good money after bad. The Respondent has not met the order against it for payment of the sum. What the Claimant seeks is a further £700 or so by way of recalculation of the sum but since the Respondent plays no part in these proceedings, it seems unlikely that he will ever get his money. Conclusion[13]I am very sorry that he feels so dissatisfied with the judgment of the Employment Judge who awarded the sums in his favour, as is apparent from the interruptions, with my judgment. But it has not been demonstrated to me that there is an error of law in the approach to these issues … MR KERR: Sir.[14]… and so the appeal is dismissed. I would like to thank Mr Kerr for coming today. MR KERR: Sir. [Audio cuts out][15]Permission to appeal: he has given no grounds except his general dissatisfaction. I will take it that everything I have said he disagrees with. There is no real prospect of success. There is no compelling reason. Although the sum is quite small, it obviously represents a figure of importance to the Claimant but it will be throwing good money after bad and is not proportionate. There is no reason for this case to take up the time of the Court of Appeal.