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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mahmood v. Barker (t/a Derby Transit Ltd) [2000] UKEAT 224_00_2906 (29 June 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/224_00_2906.html Cite as: [2000] UKEAT 224_00_2906, [2000] UKEAT 224__2906

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APPEARANCES

 

For the Appellant	The Appellant in Person


 


JUDGE ALTMAN

1. This is an appeal from the decision of the Employment Tribunal when on the 20 January 2000 the Chairman refused an application to review a decision earlier made on 5 January 2000. It comes before us by way of preliminary hearing to determine if there is an arguable point of law to justify a hearing in full before the Employment Appeal Tribunal. We have decided on the information before us today that there is an arguable point of law but it may be helpful to make the following observations.
2. At the original hearing the Appellant claimed, on termination of his employment, entitlement to a bonus payment. There was an issue as to how that was to be calculated and the Employment Tribunal preferred the evidence of the Respondents. The base figure for the calculation of any bonus was to be any increase in the gross profits for the relevant year over 10%. It is clear that the Employment Tribunal were uncertain as to any other terms, if any were ever specifically agreed, as to the calculation of such bonus.
3. The Appellant applied for a review complaining that the papers which he had to deal with were only given to him at the hearing and there was a half hour adjournment for him to consider them. After the hearing when he had an opportunity of considering the accounts that were produced he noticed a number a discrepancies. Today he has qualified that statement by saying that although a bundle of documents was provided to him before the hearing, the Chairman checked with him if he felt happy in proceeding after he had half an hour to look at them.
4. The actual accounts which formed the basis of ascertaining whether there was a gross profit increase over 10% were actually produced during the hearing by the Respondents' representative who did not wish to show them to the Appellant. It was only when the Chairman had seen the accounts and directed that the Appellant should see them that he had an opportunity of looking at them, "on the hoof," as it were, whilst the hearing was going on, his saying that he really was not qualified to read this sort of document. He says that now he has had an opportunity to consider it there are a number of matters he would have wished to raise. In his application for a review he raised matters which all go, it seems to us, to credibility. First, he says that the accounts wrongly included an item of expenditure for payment to the Respondents' son, but of course that would only affect the Net profit not the Gross profit. He refers to other items of expenditure that the Respondent was able to incur which the Appellant says arguably would falsify the accounts. On the basis of that issue of credibility the Chairman refused the review, on the ground that the Appellant had had an opportunity to look at the documents and to tell the Chairman if he had not had enough time.
5. It seems to us there are two matters therefore for consideration. The first is to clarify the way in which these accounts were produced and we would ask the Chairman if he could notify the Employment Appeal Tribunal from either his recollection or his notes or both as to the way in which the accounts were produced during the hearing. The second matter appears to be that the Appellant appeared in person. He judged for himself that he had had sufficient time to consider the papers. The review was based on that basis. However, where further study of documents produced in this way after the hearing leads an Appellant who was appearing in person to realise matters which he should have raised at the time, is it sufficient for a Chairman to conclude that the Appellant had had his chance at the time or is the later investigation of the documents after the hearing sufficient to amount either to new evidence under the rules or to a review in the interest of justice? Those are the two matters it seems to us that need to be explored.
6. Today after further consideration the Appellant pointed out that his employment year was October to October; the accounts were made to August. He contends that therefore it was the wrong year and that would of course raise questions as to whether the bonus was to be calculated on the Respondents' accounts or on the employment year figure and how would one get to the latter without accounts? Those matters were not canvassed in the application for a review and we leave it to the final hearing as to whether they are prepared to entertain that argument.
7. Accordingly this matter will be listed for 1½ hours in category C, skeleton arguments to be furnished in accordance with the usual practice, not less than 14 days before the hearing. The Chairman is asked to deal with the matters refused and in paragraph 5 of this judgment.
8. At the end of the judgment the Appellant drew our attention to the fact that he has a volume of material which, he says, had the review gone ahead he would have sought to introduce as material which he would have wished to have introduced at the hearing. We direct that he prepare a bundle of the relevant material to be served on the Respondents, not less than 28 days before the hearing and to be furnished to the Employment Appeal Tribunal not less than 28 days before the hearing. We defer to the main hearing consideration of the extent to which, if at all, that is to be considered in assessing the refusal of the review in this case bearing in mind none of that material was drawn to the attention of the Regional Chairman.