United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 902_94_2507

Appeal No. EAT/902/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 July 1995

HIS HONOUR JUDGE N BUTTER QC

MRS T A MARSLAND

MRS M E SUNDERLAND JP

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PLUSFORGE LTD          APPELLANTS

MR P A KNELLER          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MR A FARRELL

(Welfare Rights)

Southampton Unemployed Centre

11 Porchester Road

Woolston

Southampton

SO9 2JB


 


JUDGE N BUTTER QC: On 23 March 1994 an Industrial Tribunal sat at Southampton to consider a claim by Mr Kneller. The Tribunal, according to the record, consisted of the Chairman Mr Edwards; members Mrs Foulser and Mr R Pudney.

It was a claim for a redundancy payment. The Tribunal heard evidence from the Applicant alone and pointed out in their reasons that the Respondents did not appear and were not represented.

On the basis of the Applicant's evidence alone, the Tribunal was satisfied, for reasons which it indicated quite briefly in its reasons, that the Applicant was entitled to a redundancy payment which they assessed at a sum of just over £3,000.

The claim was against a Company called Plusforge Ltd. Mr Stelling complained shortly afterwards that he had just been forwarded by a Mr Brinn, a copy of the Tribunal's decision, naming Plusforge Ltd as the Respondent, which had been addressed to Mr Brinn, Managing Director of Plusforge Ltd. Mr Stelling said, "My appeal" as he called it, "is based on the following facts:- No notice of an Industrial Tribunal Application or Hearing has ever been sent to Plusforge Ltd". He pointed out that "Mr W G Brinn has never had been a Director of Plusforge Ltd". He asked for a review, or at least the matters to which I have referred were then made the subject of a review, which was heard by the Industrial Tribunal on 11 August 1995.

According to the record the Chairman was Mr Edwards; the members were Mrs Foulser and Mr Pudney. The membership is something to which I have referred because, rather curiously, in paragraph 2 of their extended reasons the decision says:

"2 The original application was heard by a differently constituted Tribunal, but, the present Tribunal was appointed by the Regional Chairman in accordance with Rule 11(6), since it was not practicable for the original Tribunal to hear the application for review."

It may be that little turns on that point. Certainly, on the face of it, it is an oddity.

The Tribunal heard evidence on that review. They dealt with the history quite shortly, but then went on in paragraph 16 to say:

"16 We are satisfied in the circumstances that Mr Stelling, from his contact with Mr Brinn, either knew or [and I underline these words] ought reasonably to have been aware of the proceedings and the date of the hearing since this information was certainly given to Mr Brinn."

I pause in passing to say that rather disconcertingly, on 15 November 1993, the Industrial Tribunal wrote to Mr Brinn describing him as Managing Director of Plusforge Ltd, although there was information indicating that he was not.

Here, it is sought to support the conclusion and the review, on the basis that the Tribunal has made a finding that Mr Stelling knew, or ought reasonably to have been aware of the proceedings and the date of the hearing.

The Tribunal drew attention at the review to the question of the application being out of time, but it was only just out of time and we believe the Tribunal acted correctly in dealing with the matter on the merits.

Having said that much however, this Tribunal thinks it right today to underline the need for notification of the proceedings and the hearing date to be sent to the correct party or parties which, according to the information available, it was not.

In those circumstances, is it sufficient for the Tribunal on review, to have dealt with the matter on the basis that they were satisfied that Mr Stelling either knew, or ought reasonably to have been aware of the proceedings and the date of the hearing? We do not, with respect, think so. If they had expressly held that Mr Stelling had known, that might be a different matter, but to say "ought reasonably to have been aware of proceedings" is, in our judgment, an insufficient compliance with the obvious requirements of notification being sent to the right party.

In all the circumstances, this Tribunal is satisfied that the decision cannot stand and it is our unanimous view that the matter must be remitted to a differently constituted Tribunal to hear the application by Mr Kneller on its merits, both parties having the opportunity of being there and presenting their respective cases; we so order.