United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 722_95_2002

Appeal No. EAT/722/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 February 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS A MACKIE OBE

MR N D WILLIS

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INPHOLINK LTD          APPELLANT

MR B DAWSON          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR J D MILLNE

(Representative)

Inpholink Ltd

Front Street West

Bedlington

Northumberland

NE22 5UB


 


MR JUSTICE MUMMERY (PRESIDENT): On 13 November 1992 Mr Brian Dawson presented an Originating Application to the Industrial Tribunal claiming unfair dismissal. He named as the Respondent employer Mr D Millne. It then gave as the address: Inpholink, 38 Front Street West, Bedlington, Northumberland NE22 5UB. Today is 20 February 1996. There are still disputes, after three hearings before the Industrial Tribunal, and a second hearing here, as to whether the correct procedure has been followed in that claim.

The appeal is by Inpholink, 38 Front Street West, Bedlington, Northumberland NE22 5UB. The appeal has been argued by their representative, Mr D Millne. The appeal is against a decision of the Industrial Tribunal held at Newcastle on 18 May 1995. The Tribunal unanimously decided to reject the application for a review made by Mr Millne, accompanied by his wife, on behalf of the company Inpholink. The extended reasons for that decision were sent to the parties on 24 May. Inpholink appealed by a Notice of Appeal served on 4 July 1995. The purpose of the Preliminary Hearing is to decide whether the appeal raises an arguable question of law. This Tribunal only has jurisdiction to hear appeals on questions of law in decisions of or arising in proceedings before an Industrial Tribunal. There is no appeal on fact. We have to ask what is the error of law in the decision refusing a review?

The extended reasons explain what happened on that application and reviewed the unfortunate history of the proceedings. At the review hearing, Mr Dawson appeared on his own behalf and Mr Millne and his wife appeared for the company Inpholink. The application for review arose out of the decision of the Industrial Tribunal, promulgated on 17 March 1995, following a hearing on 27 February. The decision was that Mr Dawson had been unfairly dismissed by Inpholink. He was awarded compensation.

In the decision, the Industrial Tribunal referred to a yet earlier hearing, which was the subject of an appeal to this Tribunal. At the earlier hearing, Mr D Millne had been named as the Respondent. That was wrong. He was not Mr Dawson's employer. Mr Dawson's employer was Inpholink. The Tribunal substituted Inpholink for Mr Millne and made an Order against Inpholink. Mr Millne appeared for the company Inpholink on the appeal to this Tribunal. For reasons given by this Tribunal on 26 October 1994, the appeal was allowed and the matter was remitted to the Industrial Tribunal, differently constituted. A direction was given that an appearance was to be entered by Inpholink within fourteen days and the application by Mr Dawson was to proceed. A Notice of Appearance was served pursuant to that Order. It is signed by Mrs Millne as Company Secretary and dated 8 November 1994. The Notice of Appearance is headed "Inpholink Limited, 38 Front Street West, Bedlington, Northumberland NE22 5UB". The Notice of Appearance states that Mr Dawson was dismissed due to his inability to perform duties.

After that Notice of Appearance had been served on the Industrial Tribunal, the case was properly constituted for a hearing to decide Mr Dawson's claim against Inpholink. A Notice of Hearing was given dated 8 February 1995. The Notice of Hearing read as follows:

"`Inpholink Ltd' Address for Service: Mr D Millne 38 Front Street West Bedlington Northumberland NE22 5UB"

The Royal Mail returned to the Tribunal, in a Royal Mail envelope, the various documents sent by the Tribunal; namely, the Tribunal's franked envelope dated 8 February, and, inside the envelope, the details of the hearing and various pieces of documentation. The Royal Mail were refused delivery when they tried to hand over the envelope and its contents from the Tribunal. The Tribunal came to that conclusion because, on the envelope before them, there was a Royal Mail printed sticker bearing the date 15 November, giving the initials and badge number of the postperson, and an `X' in the box close to the word "Refused". Somebody at the Post Office circled the name "Mr D Millne" with a biro, and inscribed on the envelope the words "Not at this Address". The envelope in which the Tribunal's documents were sent was a window envelope. It was plain that the window did not reveal the name Inpholink. The Tribunal gave an account of how Mr Millne was given an opportunity, at the review hearing, to come to the Tribunal table and insert the documents into the envelope, along its original creases. He could see, along with everybody else, that the name D Millne and the address in Bedlington appeared clearly in the window, but the Inpholink name was not visible.

The Tribunal said that it was plain that the Notice of Hearing document inside the envelope was addressed to Inpholink and the "address for service" is "Mr D Millne" followed by Inpholink's address. Mr D Millne is a majority shareholder in the company but not a Director. He drew the attention of the Tribunal to a letter sent to the Industrial Tribunal in 1993, from which they quoted two paragraphs:

"Mr J D Millne has telephoned this office this afternoon to tell me (M Millne Company Secretary Inpholink Ltd) that he had just received a notice at his home post to appear at your office on 14th in connection with Mr Brian Dawson. The notice is addressed to him personally.

In case there is the slightest doubt about it please note that Mr Millne was NOT Mr Dawsons ex-employer, this Company and this Company alone was. Mr Millne although an officer of this company, does not work at this address (and indeed has not even visited here for many months). Moreover it is a strict rule that we do not take personal correspondence for employees, even those who do work here, and only sort for the Companies registered here."

The Tribunal said the thrust was plain. The Respondents were telling the Industrial Tribunal that personal correspondence addressed to employees would be rejected. Mr Millne had told the Tribunal at the review hearing that he is the principal shareholder of Inpholink. He does not have an office in the company. He is married to Mrs Millne, who attended the hearing. The correct address of the company is as given in Bedlington. The Tribunal commented:

"It is a strange occurrence that Mr Millne chooses to disregard letters with his name on."

The Tribunal dealt with the arguments. The argument put forward by Mr Millne and his wife was that the company had not been served with the Notice of Hearing. The relevant regulations are in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. Regulation 11 deals with a review:

"(1) ... a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that-

(a) the decision was wrongly made as a result of an error on the part of the tribunal staff;

(b) a party did not receive notice of the proceedings leading to the decision;

(c) the decision was made in the absence of a party;

(e) the interests of justice require such a review."

Those are the review powers. The contention of Mr Millne was that Regulation 11(1)(b) or (c) applies to the case. The Tribunal set out the contentions on behalf of Inpholink, that the envelope which contained the Notice of the Hearing and relevant documents was not directed to them, because the name of the company was not visible in the envelope window. The contents of the envelope had not been folded in such a way that Inpholink is shown. At the address of Inpholink somebody unknown refused the Royal Mail's delivery.

The Tribunal referred to the Regulations which deal with the service of documents. Regulation 20 in the 1993 Rules deals with the service of notices. The relevant provision is 20(3)(c)(i):

"All notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post... or delivered to or at-

(c) in the case of a notice or document directed to a party-

(i) the address specified in his originating application or notice of appearance to which notices and documents are to be sent,"...

The Tribunal referred to Regulation 20(3)(d):

"in the case of a notice or document directed to any person (other than a person specified in the foregoing provisions of this paragraph), his address or place of business in the United Kingdom or, if the person is a corporate body, the body's registered or principal office in the United Kingdom;"

The crux of the Tribunal's decision reads:

"7. ... We are unanimously of the view that the Regulations have been complied with. We particularly look at Regulation 20 which directs that the Notice of Hearing, or other relevant notice has to go to the address specified by the applicant, 38 Front Street West, Bedlington, Northumberland, is on his Originating Application. It is the same address given in the respondent's Appearance. In our judgment the Regulations have been complied with; the franked envelope of the Industrial Tribunal with its contents were presented to the correct address; they were refused by whoever it was acting for and on behalf of the company. It seems to us that it cannot be right that the company may lawfully hide from receiving notice of these proceedings by deliberately refusing to accept mail to the correct address. For these reasons, and unanimously, this application for review is rejected."

We cannot interfere with the findings of fact, even if they are findings of fact we would not have made. The Tribunal made findings of fact which are binding on this Tribunal. The crucial findings of fact were these; first, the franked envelope of the Industrial Tribunal with its contents were presented to the address of Inpholink 38 Front Street West, Bedlington, Northumberland. Secondly, the envelope was refused. Thirdly, it was refused by someone who was acting for and on behalf of the company. Fourthly, that refusal was a deliberate refusal to accept mail sent to that address. We are not entitled to disagree with any of those findings of fact.

Is there a legal error in the decision? Mr Millne says there is. The only other Regulation that he has referred to is Regulation 5(2):

"The Secretary shall send the notice of hearing to every party not less than 14 days before the date fixed for the hearing..."

That Regulation has, of course, to be read with Regulation 20 which deals with the service of notices, including Notices of Hearing.

Mr Millne's arguments are these. The Tribunal acted unreasonably and contrary to the Rules of Procedure in considering the question of a review. The company Inpholink had not been notified of the hearing, as required by Rule 5(2) and 20(3)(c)(i). The company had been denied a reasonable opportunity to bring before the Tribunal a Mrs Helen Hudspith, who was the only identifiable person who could possibly have had first-hand knowledge of matters relating to the request for a review. The Tribunal had not fairly considered the evidence presented to it by the company, particularly when there was no conflicting evidence. The Tribunal had therefore arrived at a perverse, unsupported and unjust decision. The Tribunal had not given any consideration whatever to the company's application under Rule 11(1)(c) and 11(1)(d) of the Rules, as evidenced by the failure to make any mention of the same in the decision document.

Mr Millne elaborated on those particular points during the course of our discussion with him at this hearing. His complaint really comes down to this: although he is a majority shareholder of the company and is married to Mrs Millne, who is a Director and Company Secretary, he no longer has any office in the company; he is not the Managing Director, as he appears to have been in the first appeal to this Tribunal; he is not the Chairman, as stated, (he says wrongly stated) on notepaper used by this company in recent correspondence with this Tribunal. He has no office in the company. He is not the Respondent. That was decided by the Appeal Tribunal at the earlier hearing. This Notice of Hearing. was not correctly addressed, because it was his name that appeared through the window in the envelope. The correct Respondent is Inpholink. Inpholink's name, though typed on the Notice of Hearing did not appear through the window envelope. The company, Inpholink, has not therefore been properly advised of the date of hearing in accordance with the Rules. The company did not receive the Notice of Hearing. It was not present at the hearing in which Mr Dawson succeeded in his claim for unfair dismissal. The Tribunal should, on the application for review, have granted a review, setting aside the decision in favour of Mr Dawson on the ground that Inpholink had not received notice of the proceedings. The decision against it was made in his absence.

He emphasised certain matters of fact which do not appear from the Tribunal decision. We are not entitled to rely upon them, but we record them. He says he carries on his own business from a separate address. In those circumstances it is wrong that the Industrial Tribunal should have gone on to hear a case in the absence of the company. The Tribunal had sent out a letter giving notice of the hearing in an envelope which, on the face of it, was addressed to him, not to Inpholink.

Those are the points. We understand Mr Millne's submissions. We understand that those concerned with the company may feel aggrieved that they have lost the case, which they were not present to argue, when it was heard. This, however, is not enough to constitute an error of law in the decision of the Tribunal. We can only interfere with the decision notified on 24 May if there is a legal error in it. In our view, there is no legal error in it. It may be that Mr Millne and the company dispute the findings of fact. It may be that, if we had heard the evidence, we may not have made the same findings of fact. Our conclusion is, however, that on the findings of fact made by the Tribunal, there are no grounds for saying that there was a legal error in the way in which they applied Regulations 11 and 20 to the facts they found. On those facts, there was no legal error in the application of Regulation 20 for the purposes of refusing the review.

We have come to the conclusion that there is no hope of this appeal succeeding. It will be dismissed.