United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: These proceedings began on 20th December 1996 when the appellant, Mr Coleman, presented an Originating Application to the Central Office of Industrial Tribunals, naming Mr Loveless as the respondent employer against whom he claimed redundancy pay; notice pay and outstanding holiday pay following termination of his employment on 31st October 1996.

No Notice of Appearance was entered by the respondent and on 14th April 1997 the complaint came before a Chairman, Mr M D Homfray-Davies, sitting alone at the Liverpool Industrial Tribunal. For the reasons promulgated in summary form on 15th April the Chairman granted leave to the applicant to amend his Originating Application to name the respondent as Mr M Loveless t/a Garston Glass, and ordered the respondent to pay £800 pay in lieu of notice; a redundancy payment of £1,050 and £160 outstanding holiday pay.

Following promulgation of that decision ["the substantive decision"] the respondent applied by letter dated 22nd April 1997 for a review of the substantive decision in the following terms:

"Dear Sir,

I would like for you to review the case COLMAN - GARSTON GLASS.

Mr Colman and Mr Thomas left Garston Glass on the 31st October 1996 to go self-employed. How can redundancy be paid when they left on their own accord, holiday pay and other entitlements were paid in full."

The Chairman considered that application on 30th April, and for the reasons promulgated on 6th May 1997 summarily dismissed the application under Rule 11(5) of the Industrial Tribunal Rules of Procedure. The Chairman observed that the respondent had failed to enter a Notice of Appearance or to attend the hearing held on 14th April. We pause to observe that the respondent had given no explanation for those failures in his letter applying for the review. The Chairman pointed out that the respondent had missed his opportunity to challenge the factual basis of the applicant's claim.

On 19th May the respondent wrote to the Employment Appeal Tribunal Registrar. His letter begins:

"I would like you to review the tribunal decision."

We have no power to review Industrial Tribunal decisions. Our jurisdiction is limited to correcting errors of law.

The letter goes on to explain that the respondent was off ill from 6th June 1996 until 14th April 1997 having suffered a stroke. He contended that he was in partnership with a Mr Thomas, t/a Garston Glass; that Messrs Colman and Thomas decided to go self-employed and left the business on 31st October 1996. They took the customers of Garston Glass with them. When they left they were paid up in full. He did not reply to correspondence because the office was shut down due to his illness.

Again, we pause to observe that these were all matters which could and should have been placed before the Chairman in the review application dated 22nd April.

Following a letter from the Registrar dated 4th June, the respondent completed a pro forma Notice of Appeal dated 9th June, accompanied by a letter setting out the grounds of his appeal to the Employment Appeal Tribunal.

On 16th July he swore an affidavit pursuant to paragraph 15 of the Employment Appeal Tribunal Practice Direction with a view to showing his excuse for not entering a Notice of Appearance below, and to show that he had a reasonably arguable defence to the claim.

His reason for not entering a Notice of Appearance is effectively as stated in his letter of 19th May, namely that on 6th June 1996 he suffered a stroke causing to spend more than three weeks in hospital. Thereafter he states that he stayed away from all his business interests until 14th April 1997. He then returned to work at Kinderton Lodge Farm, the address he gives on that affidavit, and found the Industrial Tribunal's Notice of Hearing for 14th April.

We are told that during his absence from work his sons carried on business from that address. We find it extraordinary that they did not open his correspondence during that period. At the very least, we are not satisfied that the respondent has advanced any good excuse for not entering a Notice of Appearance in the Industrial Tribunal proceedings.

The respondent has a further difficulty. In applying for the review of the tribunal Chairman's original decision on 22nd April he failed to mention any of the matters now raised as to his state of health. He merely disputed the factual basis of the applicant's claims. In these circumstances we can see no grounds for interfering with the Chairman's review decision. No sufficient grounds for a review under Rule 11(1) of the tribunal Rules of Procedure were advanced by the respondent in the review application.

Finally, we have considered the five grounds of appeal raised by the respondent in his letter dated 9th June. They challenge the factual findings of the Chairman at the first Industrial Tribunal hearing; however those findings were based on only one side of the story which the Chairman heard from the applicant, due to the respondent's failure to take part in the proceedings.

We are not without sympathy for the position in which Mr Loveless now finds himself, but we are unable to see any grounds in law for allowing this appeal to proceed to a full hearing and, accordingly, it must be dismissed.