United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 127_95_0806

Appeal No. EAT/127/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8th June 1995

Before

THE HONOURABLE JUSTICE MUMMERY (P)

MT K M HACK JP

MR P M SMITH

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ATLANTA SPORTS          APPELLANTS

F ROBSON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

NO APPEARANCE BY OR ON BEHALF OF APPELLANTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an Appeal by Atlanta Sports of Hellaby, Rotherham against the decision of the Chairman of an Industrial Tribunal held at Sheffield on 13th December 1994.

The Chairman heard an application by Mr Frank Robson against Atlanta Sports, his former employers. The claim in the originating application presented on 29th June 1994 was for non-payment of wages and sick pay.

The decision of the Chairman was that Atlanta Sports had unlawfully deducted the sum of £154.12 from Mr Robson's wages, contrary to the Wages Act 1986. That sum was made up as to £19.12 for statutory sick pay to which Mr Robson was held to be entitled and one week's pay of £135.00.

Atlanta Sports appealed against by letter dated 16th January 1995 sent to the Employment Appeal Tribunal within ten days of the extended reasons for decision being notified on 5th January 1995. That letter has been treated as the Notice of Appeal.

The position today is that late last night a faxed letter was received at the Appeal Tribunal from Mrs Winstanley on behalf of her husband, the proprietor of Atlanta Sports. The letter states this:

"Regrettably due to illness my husband Mr Winstanley is unable to attend the hearing regarding the matter being heard on the 8th June 1995 at 2.00 p.m.. However, in his absence it is requested that you consider the facts of our letter of the 16th January 1995 which clearly states our case with regard to the findings of Mr Williams."

(Mr Williams was the Chairman of the Tribunal.)

In those circumstances we have not felt it necessary to wait till 2.00 p.m. to hear this case. There would only be attendance by the Appellant. His reasons for non-attendance are given.

This is a preliminary hearing. The purpose of it is to decide whether the Grounds of Appeal, contained in the letter of 16th January 1995, reveal any arguable point of law. If they do not, there is no point in this case proceeding to a full hearing, this Tribunal only has jurisdiction to hear appeals on points of law.

In order to understand the points it is necessary to refer to the findings of fact in the decision and, in particular, the procedure adopted by the Chairman. It appears from the extended reasons that no Notice of Appearance was received by the Industrial Tribunal from Atlanta Sports before the hearing date. On the hearing date Mr Winstanley, the sole proprietor, turned up with his foreman Mr Beever. Mr Winstanley asked to be heard. He applied for consent to enter a late appearance. Mr Robson did not object to this. The Chairman granted Mr Winstanley's application under Rule 15 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. A Notice of Appearance was lodged. Mr Robson had an opportunity to consider it.

We have been provided with an extract of the notes made by the Chairman about the procedure at the hearing. They amplify the summary in paragraph 2 of the reasons. It appears from the notes that Mr Winstanley wanted the case to be heard. He claimed that a Notice of Appearance by letter had been sent to the Tribunal, though he could not say when. Mr Robson said that he had no objection to the case being dealt with. He wanted it "out of the way". The Chairman adjourned the matter to allow Mr Winstanley to complete a Notice of Appearance so that the case could be heard later that day.

The Chairman dealt with other cases while Mr Winstanley was completing the Notice of Appearance. The Notice of Appearance was submitted later in the morning. Mr Robson had a chance to read it and he was happy for the case to proceed. The case proceeded with evidence from Mr Robson, Mr Winstanley and Mr Beever. We have a copy of the Notice of Appearance the IT3 which is handwritten. It bears the signature of Mr R D Winstanley and is dated 13th December 1994, the date of the hearing.

We mention the procedural aspects of the case because criticisms have been made of the way in which the Chairman conducted the hearing.

The extended reasons give an account of the evidence. Some of it was agreed, but there were disputes of fact of other matters. Three points arose during the hearing. The first was a point made by Mr Winstanley that Mr Robson was in breach of his contract by failing to give a week's notice. The Chairman ruled in paragraph 5 that he had no power to deal with that dispute, because the alleged breach of contract occurred on 22nd April 1994. That preceded the date on which the Tribunal's powers to deal with cases involving breaches of contract came into force in July 1994.

The second point was statutory sick pay. The Chairman set out the evidence in summary form in paragraph 6. He found as a fact that Mr Robson had produced a self-certificate relating to absence through sickness. He said he was entitled to expect statutory sick pay for the week from 11th - 15th April 1994. He was therefore entitled to the sum of £19.12. That had not been paid to him. Therefore it was an unlawful deduction from his wages.

The third matter was the claim by Mr Robson for a week's pay for the period immediately prior to his leaving. He left on 22nd April 1994. He had last been paid on 15th April 1994 in respect of the week ending 8th April 1994. In those circumstances, the Chairman concluded that there had been an unlawful deduction from the wages of Mr Robson. That amounted to £135.00. There was a breach of the Wages Act 1986. He repeated Mr Winstanley's point that other people had been inconvenienced and the firm put into difficulty by Mr Robson leaving as he did without notice. The Chairman repeated the ruling in paragraph 5 of the decision that he had no jurisdiction to deal with the claim for damages for breach of contract.

We have to ask ourselves what is legally wrong with the three rulings. The letter of 16th January 1995 makes a number of points. The first is a point made by Mr Winstanley at the hearing:

"No correspondence was received stating the correct title of the firm that Robson worked for. ..."

Mr Winstanley attended the hearing to point out that there was no such company as:

"Atlanta Sports Industries Ltd; therefore no correct documents had been served upon [him]."

On that point we have looked at the originating application IT1 in which the details of the employer given by Mr Robson were Richard Winstanley at "Atlanta Sports Ltd, Rotherway, Hellaby Ind Est," Hellaby, Rotherham, S. Yorks, that is the address given on the Atlanta Sports notepaper. We have also been provided with a lengthy letter of explanation from the Industrial Tribunal about the service of documents and correspondence relating to Mr Robson's claim. The details are set out in a letter dated 30th March 1995, written in response to the Appeal Tribunal's request for comments on the allegations in the letter of 16th January 1995. A detailed explanation is given about the service of documents, about various telephone calls and facsimile messages, extensions of time and so on.

The complaint in the letter seems to be that Mr Winstanley had only intended to deal with the correction of the name of the respondent to Mr Robson's case, and that there was no consent by the Company to continue with the case. It is said in paragraph 4 of the letter:

"It should be noted that we did not consent to continue with the case but Mr R L L Williams merely took it upon himself to continue without giving proper service of documentation."

The complaint continues:

"Mr R L L Williams states that no notice of appearance was received. However, correspondence was entered into with the tribunal, a copy of the document sent was shown to Mr Williams, however he chose to disallow it by stating that he believed it had not been sent."

"If the document was not received I relate back to my first paragraph. it was not necessary to send a notice of appearance as I cannot reply for a non existent company. Therefore the full content of paragraph four is invalid. Mr Williams' comments also relate and suggest that he was still hearing witnesses from a limited company."

That criticism of the procedure, in our view, is misconceived. That the documents that were served by the Tribunal in respect of Mr Robson's claim were validly served, even though there was difference in the name of the company stated in the IT1 and the proper name of the firm name under which Mr Winstanley trades. The address is the same. They received notification of the proceedings. The objection that there was a misnomer is without any substance. In those circumstances the Chairman was right to proceed.

As to the allegation that there was no consent to continue with the case, we reject that. It appears from the extended reasons for the decision and from the extract from the Chairman's notes that Mr Winstanley did not ask for the case to be adjourned. He gave evidence, Mr Beever gave evidence. They must have agreed, at the very least by implication, to the matter being decided on that day. We have in addition the note of the Chairman that Mr Winstanley wanted the case to be heard. He took the benefit of the directions given by the Chairman to complete a Notice of Appearance, so that the procedure could be regularised before evidence was heard from each side. We find no error of law by the Chairman in the way in which he dealt with the objection of the naming of the Respondent, or with the filing of a late Notice of Appearance and the hearing of evidence.

A point is made about the claim for damages:

"... it was pointed out to Mr R L L Williams that cases of this type have been heard in the County Court giving us the right to claim for damages. Mr Williams states that that is not under his jurisdiction and now the law has been revised and since July 1994 breaches of contract and damages can be heard by the tribunal. In other words the tribunals now have similar powers to the County Court. We had basically no rights in that situation and the tribunal was unfair and one sided. I contend that under the circumstances the tribunal had no right to hear the case anyway."

That criticism is misconceived. The Chairman noted that Mr Winstanley claimed breach of contract by Mr Robson in leaving without giving a week's notice. In our view, the Chairman correctly ruled on that point. There was no jurisdiction in the Industrial Tribunal at the time of the alleged breach to hear a claim for damages. The extension does not affect this case which occurred in April 1994. It is also misconceived for Mr Winstanley to contend that the Industrial Tribunal had no right to hear the case. The Industrial Tribunal has jurisdiction under the Wages Act 1986 to hear claims that there have been unlawful deductions. That was the nature of Mr Robson's claim.

The last area of complaint takes on an unwarranted abusive tone. Mr Williams, as Chairman, heard evidence from three people. He made findings of fact on the basis of the evidence, Mr Winstanley takes objection to the way in which the facts were resolved. He says:

"In other words Mr Williams criminalised two trustworthy responsible people [that must refer to him and Mr Beever] in favour of an untrustworthy, conniving thief. [Which we take to be a reference to Mr Robson] "

He says that he is outraged by the conduct of Mr Williams. He expresses an opinion about Mr Williams is unfit to judge these matters. He takes objections to the conclusions reached, and makes other allegations which lead to the threat that he is now firmly considering the closure of the manufacturing plant of Atlanta Sports within the United Kingdom and transferring it overseas. For these reasons he wants a retraction of the decision made by Mr Williams. Copies of that letter were sent to the Minister of Trade & Industry, to an MP and to the Lord Chancellor's Department.

In our view, on the basis of the letter from the Industrial Tribunal of 30th March 1995 and the extract from the Chairman's notes, we have no hesitation in rejecting the criticisms of Mr Williams's conduct of the hearing. He heard evidence from all three. He sets out in considerable detail the evidence he heard and the documents produced. He resolved the conflicts of fact. Mr Winstanley has made unjustified criticisms of the Chairman because the facts were not resolved to the satisfaction of Mr Winstanley.

In our view, the findings of fact in relation to the statutory sick pay and the claim for one week's wages are not assailable on this Appeal. There is no point of law raised in the letter of 16th January 1995. There is no point of law apparent to us on the face of the extended reasons.

The letter of 7th June 1995 referred to at the beginning of this judgement, explaining the non-attendance of Mr Winstanley, also contains unwarranted allegations against the Chairman, accusing him of deliberately flouting the rules of procedure, making other criticisms of the way in which the Sheffield Tribunal office dealt with the matter, and repeating the threat to remove his business from the United Kingdom. In our view, the language of this letter does not reveal any point of law. It makes allegations which Mr and Mrs Winstanley should not have made.

Our conclusion is that this Appeal should be dismissed at this stage. There is no arguable legal point that the Tribunal Chairman failed to follow correct procedure or came to a decision which contains an error of law.

We dismiss the Appeal. We repeat that Mr and Mrs Winstanley have made personal attacks on the Chairman without any foundation.