United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 222_93_2807

Appeal No. EAT/222/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 July 1993

Before

HIS HONOUR JUDGE J HULL QC

MS S R CORBY

MRS M E SUNDERLAND JP

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MANSFIELD FABRICATION SERVICES LTD          APPELLANTS

MR D ASTLE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR J WARREN

Director

Mansfield Fabrication Services Ltd

Unit 15

Unity Road

Lowmoor Industrial Estate

Kirkby-in-Ashfield

Notts

NG17 7LE


 


JUDGE J HULL QC: In this case the Appellants, employers represented by Mr Warren, Director, were the Respondents in front of an Industrial Tribunal to whom Mr Astle, their former employee, made a complaint of unfair dismissal. That complaint came before the Industrial Tribunal held at Nottingham. Apparently, the date originally fixed for a hearing was 30th July 1992. That was inconvenient for the employers, and accordingly it was postponed and the employers were notified that the hearing would be listed for the fortnight commencing on the 28th September 1992 and notice of the hearing date was duly sent in accordance with the rules. Under the Industrial Tribunal rules notice of the hearing may always be sent, and is always sent, by post. Apparently, this is what Mr Warren tells us, it never arrived and therefore the employers did not know that in fact there was to be a hearing on the 7th October. At that hearing the Tribunal found that Mr Astle had been unfairly dismissed and awarded compensation. The employers, being aggrieved by the fact that they had not, as they said, received notice, applied to the Industrial Tribunal for a review and that application was considered by the Tribunal on the 15th January of this year. They gave their reasons for refusing to review their earlier decision. They said in paragraph 4 of their decision:

"Mr Jeffrey Warren gave evidence on behalf of the respondents. He confirmed that he had received all documentation, apart from the Notice of Hearing for 7 October. The case was originally listed for 30 July 1992. It was postponed at the request of the respondents and Mr Warren confirmed that he had received the letter from the Regional Office of the Industrial Tribunal subsequent to the postponed hearing of 30 July, indicating that the case would be listed for the fortnight commencing 28 September 1992. Mr Warren confirmed that he had received a bundle of documents from the applicant [the employee, Mr Astle] some time before 7 October.

We are satisfied that the respondents either received the Notice of Hearing for 7 October or, if they did not, did not act with reasonable prudence when they received the bundle of documents from the applicant. . ."

Of course it is simply a matter of commonsense, but if a bundle of documents arrived in October at the time when the employers had been notified that the case was to be re-listed, then one would expect that that would jog their memory if anything would. But quite apart from that it no doubt seemed to the Tribunal that since the firm had been warned that the case would be listed for this particular fortnight it would be elementary for a business organisation, if they had not heard about the actual date, to ring up and find out about it. They did not do that. Under the rules, the Industrial Tribunal can serve notice of the hearing date by post and under the Interpretation Act such service is deemed to be good unless it is proved that in fact there was no service. So the burden was on the employers to satisfy the Tribunal, if they wished to ask for a review, that they had not in fact been served, that this notice had not come through the post. It is obvious from what I have read that they failed to persuade the Tribunal of that. It was the duty of the Tribunal to hear Mr Warren; they did hear him. It was a difficult position for Mr Warren, obviously, to prove a negative. Mail can easily be mislaid. It was the duty of the Tribunal to make up their minds whether they were satisfied that that letter had not been received. They were not satisfied, and that was the end of the matter so far as the Tribunal was concerned; they were obliged in those circumstances to consider that there had been good service and to let their previous decision in October stand.

Now the employers appeal to us. As has been pointed out to them, under Section 136 of the Employment Protection (Consolidation) Act 1978 to which this Tribunal owes its existence the provision is:

"An Appeal shall lie to the Appeal Tribunal on a question of law"

and therefore questions of fact like this are not the subject of an appeal even if we thought that the Tribunal had reached a conclusion which we might not have done. It is not open to us to hear appeals except on points of law. In those circumstances we have asked Mr Warren, what is the point of law; and he is quite unable to identify to us any point of law on which he can base criticism of the Industrial Tribunal's decision. It is obvious from what I have read that the Industrial Tribunal did indeed carry out the task which they are required to do. No error of law is suggested, and we certainly, having read the papers, cannot see any error of law. Therefore we have no alternative, on this preliminary hearing, to saying that this appeal cannot proceed and we must dismiss it.