United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 192_95_1105

Appeal No. EAT/192/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11th May 1995

THE HONOURABLE MR JUSTICE MORISON

MRS M E SUNDERLAND JP

MRS P TURNER OBE

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HAINAULT WORKING MENS CLUB          APPELLANTS

MR J P ROGERS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR P MEAD

(of Counsel)

Messrs Cornish & Co.

Lex House

1-7 Hainault Street

Ilford

Essex

IG1 4EL


 


MR JUSTICE MORISON: A Mr Rogers was employed by Hainault Working Mens Club in their bar. On 18th May 1994, he was summarily dismissed for alleged misdemeanours. He presented a complaint to an Industrial Tribunal alleging that he had been unfairly dismissed. In his IT1, he gave as the dates of his employment from 16th April 1991 to 18th May 1994.

His former employers, whom we shall call "the Club" in their IT3 accepted the dates of employment as stated by the complainant in his IT1.

The case was listed for hearing on 21st December 1994 at 10 o'clock in the morning, and the Club were notified of this date in the first week in September 1994. By letter dated 10th December 1994, the Club asked for an adjournment, on the grounds that they had recently changed solicitors, and the new solicitors had not had enough time to look through their papers and witness statements.

The new solicitor was named as a Mr Carson of Cornish & Co. It was said that the letter was written on his advice. It is to be noted, that in their IT3, the Club had given no indication that it had a representative acting on their behalf. This letter was not received by the Industrial Tribunal until 16th December 1994, when it was considered. The application was refused by letter dated 19th December 1994. On 21st December 1994, neither the Club nor a representative, appeared. A telephone call was made to the solicitors named in the Club's letter, and from that conversation, it became clear that they had no instructions or retainer from the Club.

Subsequently after the hearing had commenced, the Tribunal received a letter from the solicitors purportedly sent by facsimile, but apparently never received as such, and dated 20th December 1994. That letter refers to the Club as their clients. In it, it is said that they had spoken to the Employee's solicitors, and:

"... we understand that they have written to you confirming their Consent to an adjournment of the matter."

And asking the Industrial Tribunal to confirm by return whether the application could be adjourned. The Employee's representative, a member of the Free Representation Unit, said he had spoken to Cornish & Co. but had not agreed to an adjournment.

In the light of those circumstances, the Industrial Tribunal proceeded to hear the matter, and found the dismissal to have been unfair, and awarded compensation and a basic award of £11,615.00 in total.

The Full Decision was sent to parties on 18th January 1995. By letter dated 1st February 1995, Cornish & Co. wrote to the Industrial Tribunal saying that they were instructed on behalf of the Club, which had forwarded to them a copy of the Decision. They said that the Club had not received it until 25th January 1995. They asked for a review, on the grounds that their clients had thought the hearing would be adjourned, and their witnesses had not been alerted. Further, it was said, that a document prepared for insurance purposes showed that the Industrial Tribunal did not have jurisdiction, as the Employee had only worked full-time from July 1992 and had been working only part-time prior to that. We should say in parenthesis, that there was no indication as to the number of hours that he was working, if he was working as a part-timer. A number of other points were made about the Employee's evidence.

That application for a review, was refused by the Industrial Tribunal.

"1. The Respondents were notified of the date of hearing as 21 December 1994 by letter dated 5 September 1994 which they would have received a few days later. The Respondents did not apply for a postponement of the hearing until they wrote a letter dated 10 December 1994 which was received in the Tribunal Office on 16 December. The Respondents were informed of the refusal of the postponement request by telephone on 19 December 1994, confirmed by letter from the Tribunal Office of the same date. On 21 December 1994 a letter was received from the Respondent's solicitors dated 20 December which stated:

"having spoken with the solicitors representing the Applicant we understand that they have written to you confirming their consent to an adjournment of the matter."

2. At the hearing the Applicant was represented by Mr T Crossland of the Free Representation Unit who confirmed that he had spoken to the Respondents' solicitors but had said that he had no authority to agree to an adjournment and had certainly not consented to one. On the hearing date attempts were made to contact the Respondents by telephone (at the number given on their Notice of Appearance) but there was no reply."

By a Notice of Appeal, the Employers wished to contend that the Employee was not employed for the requisite period to give the Industrial Tribunal jurisdiction. In other words, they wish to present to this Employment Appeal Tribunal documentary evidence which purports to contradict evidence given at the Hearing by the Employee about his continuity of employment, which the Industrial Tribunal accepted.

As we understand the position, and as was accepted, quite properly by Mr Mead, who has given us considerable assistance in this case, the Club cannot argue that the Decision of the Industrial Tribunal was wrong, on the basis of the evidence presented to it. What the Club are submitting is that had the case been adjourned they could have presented evidence which would have shown that the Employee did not have the necessary qualifying period of service.

In effect, therefore, what the Club is seeking to challenge, is the Decision of the Industrial Tribunal to proceed to hear the case, in the absence of the Club, and to refuse to grant the Club a review of the Decision.

It is said, attractively, by Mr Mead, that in the interests of justice, because there is a real arguable point as to whether there was a qualifying period of service, we ought to allow the appeal. But in our view, the challenge which is mounted, is not arguable as a point of law. It seems to us, that the Club had behaved in a way which reveals both a lack of appreciation of what is involved in such a hearing, and, if we may say so, a disrespect for the Industrial Tribunal.

Nothing was done by Club between the beginning of September and 10th December 1994. According to their letter to the Industrial Tribunal they changed their solicitors. But it is clear, that despite what was inferred in that letter, they had not instructed new solicitors to act on their behalf or put them in funds to do so. Further, it seems to us, to be not correct that the reason for the application for an adjournment was because the new solicitors did not have sufficient time to look through the papers and witness statements. The solicitors had not been put in funds, and could not have been working on the case at that time. And in any event, there was plenty of time for a reasonably competent firm to get a case up within the time then available.

If the solicitors advised the sending of the letter, they surely cannot have advised the Club that such an application would be bound to succeed. The Club must therefore have known that the Industrial Tribunal might refuse their application, and if they were taking the case seriously, and respected the Tribunal process, the Club would surely have prepared themselves for a hearing on 21st December 1994 against that possibility. The solicitors letter to the Industrial Tribunal, which was received on 21st December 1994, was written on 20th December 1994 and says this:

"We understand from speaking with our Clients that the hearing of this matter is listed for tomorrow, Wednesday the 21st December at 10 a.m. and that they have applied to the Tribunal for an adjournment."

The letter then makes reference to the disputed conversation with the Applicant's representative and continues:

"Accordingly, on behalf of our Clients, we would be grateful if you could please confirm by return whether this application can be adjourned and stood out of the list tomorrow to the first available dated after say 1st February 1995."

There is no indication in this letter as to why the case could not proceed; no suggestion that witnesses were unavailable. Further, as is clear from its terms, the solicitors knew that the case was still in the list and that confirmation was required from the Industrial Tribunal before it could be known that the case was taken out of the list. We assume that the Club were informed of the contents of this letter, and must have known, that but for a confirmation from the Industrial Tribunal, the case would remain on the list for the following day. Thereafter the Club received on 20th December 1994 the Industrial Tribunal's letter refusing their written request for an adjournment. No reason has been put forward for the Club's failure to appear on 21st December 1994, save what is contained in their solicitor's letter asking for a review.

"Thereafter although our Client was notified by us that an adjournment had not been granted (as confirmed by the Applicant's representative on 20th December and by the Tribunal on the morning of the hearing, that is 21st December 1994) our Client was somewhat confused and through that attendance was not required by them as the matter would be adjourned."

No indication is given as to the source of the alleged confusion. The position is, that the Club had been told both by their solicitors and by the Industrial Tribunal on 20th December 1994, that an adjournment had not been granted. The position could not have been clearer. And we note that they were receipt of legal advice at the time, and it is apparent from the solicitors letter to which we have referred, that they knew on 20th December 1994 that all attempts to get the case adjourned had failed. The position is this therefore, that without any good reason the Club did not attend on the date fixed for the hearing, which had been fixed three months before. They sent no one to renew their request for an adjournment or to give the Industrial Tribunal any indication of any difficulty, if any, they were experiencing. Instead, the inference maybe that they decided to take the risk of the Industrial Tribunal going ahead in their absence, hoping that they could retrieve the position later on.

The Industrial Tribunal were fully entitled to proceed to hear the case in the Club's absence. And the Chairman was fully entitled to take the view, that the matters of fact, which the Club wished to present to the Industrial Tribunal could reasonably been presented on the previous occasion, and the Club had shown no good reason for their absence from the Tribunal. It follows therefore, in our view, that there are no grounds in law for arguing that the original decision of the Industrial Tribunal was wrong on the evidence presented to them. Further, there are no arguable grounds for suggesting that the decision not to accede to the application for review was wrong in law. And in our view, it would not be in the interests of justice that the Club should be allowed to re-open the matter at this stage.

Accordingly we have no hesitation in saying that the Appeal must be dismissed.