Day 181 - 01 Nov 95 - Page 54


     
     1        A.  Yes.  This is a case of where you get cautioned and not
     2        fined.  The practice would not be to rush to court.  The
     3        number of prosecutions was very small annually, in single
     4        figures.  Generally, firms would be reminded of the
     5        obligation to actually calculate it properly, and not "busk
     6        it", as I used the phrase yesterday, which is to hope that
     7        you are there accurately and you may get there by
     8        accident.  Well, statutes are not supposed to be complied
     9        with by accident; you are supposed to comply with them by
    10        calculating the figures in the proper manner.  But a firm
    11        that may have got there by the wrong method and be on or
    12        just about right would still be criticised, but there would
    13        be an informal advice note given that they should pay in
    14        the proper manner.
    15
    16   MS. STEEL:   OK.  Thank you.
    17
    18   MR. JUSTICE BELL: I am conscious that I keep interrupting you,
    19        but that, again, is a matter of law; and if it is important
    20        -- and it may be important -- then I must in due course
    21        (not necessarily now) look at the statutory regulatory
    22        provisions and decide that as a matter of law.
    23
    24        What I suggest you do -- it was a matter I had in mind to
    25        ask Mr. Pearson this morning -- when we adjourn, probably
    26        not too far into the future, I suggest you ask Mr. Pearson
    27        if he will stay, and see if he can give you the appropriate
    28        statutory provisions, or arrange for him to telephone you
    29        with them at some stage in the future, to save you going on
    30        a great hunt for them.  Then he can give them to me, and
    31        I can get them out of the library.
    32
    33   MR. MORRIS:  May it be possible for Mr. Pearson to do a
    34        supplementary statement, where we could give him the
    35        payslips that we have got, ask him to make calculations
    36        based on them, and indicate any legal framework they should
    37        be considered within?  He would not have to be recalled,
    38        that is what I am saying.
    39
    40   MR. JUSTICE BELL: You can take that approach if you want, but
    41        I can do the arithmetic myself.  All I am saying is that
    42        I am minded to think at the moment that the proper
    43        construction of the order and any schedules under the order
    44        is a matter of law which, for better or worse, I as the
    45        judge have to decide.  If it was a matter of foreign law,
    46        you could call expert evidence on it, but it is English
    47        law.  So, for better or worse, I am supposed to be the
    48        expert.
    49
    50   MR. MORRIS:  Just on this issue, a final point.  You have said 
    51        that one method for dealing with a company like McDonald's, 
    52        rather than visit lots of stores, the wages inspectorate 
    53        would ask for something like the conditions of contract of
    54        employment, which would be the Crew Handbook; yes?
    55        A.  Yes.
    56
    57   Q.   Is that correct?
    58        A.  Yes.
    59
    60   Q.   You do not have to go to it yourself, but I can read out

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