United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON


 


JUDGE HICKS QC: Mr William Bell, the Appellant, ran two restaurants in Torquay and at one of them, The Vault, employed the Applicant before the Industrial Tribunal and the Respondent to this appeal, Mr Neil Baxter. As the Industrial Tribunal found, and as is not in dispute by Mr Bell, there had been during the latter part of the year for which Mr Baxter was in that employment a number of occasions on which he had been paid by cheque and the cheque had been dishonoured. As the Tribunal say in their findings, having listed seven of such occasions, eventually, save on the last occasion, Mr Baxter was paid either by the cheque's being represented or in cash.

On Maundy Thursday 1996, the day before the Easter weekend, Mr Baxter turned up complaining of the last of these unpaid cheques and, according to the Industrial Tribunal on the evidence they heard, said that he was not happy working under these conditions. The Tribunal go on to say that Mr Bell told him that if he was not going to work then he would never work there again. Mr Baxter, as the Chairman of the Industrial Tribunal found, was justified in taking that as a notice of dismissal and left, which was the reason for his complaint to the Industrial Tribunal.

Mr Bell, when he received the documents from the Industrial Tribunal, which would have included a copy of the Originating Application, a blank form of Notice of Appearance and, if the usual practice was followed, a brochure of notes for his assistance, did not file a Notice of Appearance on the approved form and has never done so. What he did was to send to the Industrial Tribunal a copy of a letter which he wrote on 24 April 1997 to Mr Baxter's solicitors, and that date, 24 April, was three days after Mr Baxter's Originating Application, so it was a prompt response.

In that letter to Mr Baxter's solicitors, after setting out the substance of Mr Bell's case, which, I may say, is not materially different about the events of Maundy Thursday from what Mr Baxter told the Tribunal, Mr Bell ended up near the end of his letter by saying:

"...... that by just 'walking out' he is entitled to monies due and owing totalling £4,348. I do not see how this can be so and will defend this totally."

When the hearing was called on Mr Bell arrived, apparently, two minutes late, for which he was, he says, reprimanded by the Clerk to the Tribunal, but was told by the Chairman that he could not be heard because of his failure to serve a Notice of Appearance. Although in his statement of reasons for appeal Mr Bell says that the reason given by the Chairman was the late arrival it is quite clear to us, having heard his account today, that the facts are as I have stated them, namely, that the reference to the lateness was by the Clerk, and the reason given by the Chairman for not hearing him at the time, orally, was exactly the same one as the one stated in the Tribunal's written Extended Reasons, namely his failure to enter an appearance.

Having therefore refused to hear Mr Bell the Tribunal proceeded to deal with Mr Baxter's application; they heard Mr Baxter's evidence, found that there had been unfair dismissal in the circumstances which I have described and proceeded to deal with compensation. They awarded compensation on the basis that, as is not we understand in dispute, Mr Baxter was entitled to three months' notice and that in fact he had been in work for one week only during the first twelve weeks of that period and then had started continuing employment in the last week, so that the period for which he had lost earnings was eleven weeks. I should correct one matter: I have referred to compensation as if this were compensation for unfair dismissal under the Act; in fact Mr Baxter had not been with Mr Bell long enough to be entitled on that basis, and the award made by the Industrial Tribunal was on the basis of money that was due to him for unpaid wages and damages for wrongful dismissal, that is to say breach of contract, but that makes no difference to any of the substantive matters that I have recited.

Mr Bell now appeals, and since he had not served Notice of Appearance in the appropriate form, and since the Industrial Tribunal dealt with the matter on the basis that he had not served Notice of Appearance, the first question we have to consider is whether there is a good excuse for his failing to enter a Notice of Appearance or at least an arguable case that he has such an excuse. Mr Bell's reason, as he has told us (and some of it - certainly the reference to his receiving advice on the matter - is new, in that it was not in his Notice of Appeal or his Affidavit) is that when he received the documents from the Industrial Tribunal he simply passed them over without considering them, except to realise what the general nature of them was, to the solicitors then acting for him, who advised him that it would be sufficient to send to the Tribunal a copy of the letter he was writing to Mr Baxter's solicitors and that that was what he did and that was why he did it.

In our view, on that aspect of his appeal, there is a case which justifies going to a full hearing of the appeal and it should not be dismissed so far as that point is concerned at this stage, and we therefore say no more about that because it will no doubt be considered further and dealt with at the full hearing.

We have to consider whether there is a reasonably arguable defence to the claim in the Originating Application. There is no point in letting an appeal go ahead unless there is an arguable case to put before the full hearing. That divides itself into two parts. The first is whether there is an arguable ground for challenging the finding of the Industrial Tribunal that Mr Baxter was wrongfully dismissed in breach of contract and the second aspect is whether there is an arguable ground for appeal on the amount of the compensation awarded.

So far as the first point is concerned, we have come to the conclusion that there is no arguable ground for appeal against the finding of wrongful dismissal. As I have already indicated the essential facts are not in dispute. Mr Bell does not dispute that there had been a number of cheques given to Mr Baxter in payment of wages which had been dishonoured. He does not dispute that the cheque in question (one for £160) had been dishonoured, and indeed after representation was dishonoured for the second time. He cannot and does not say that he had good reason to believe when giving the cheque that it would be met, because he frankly admits that he did not know how much money there was in the bank and after the previous history it is quite impossible to suppose that he could have had any real confidence that the cheque would have been met. His only quarrel before us with the findings of the Tribunal is that the cheque in question, he says, was not the immediately past cheque but one for two or even three weeks earlier, the intervening weeks having been paid in cash. It does not seem to us that that helps this case one little bit; in fact it tends to support the fact that this was the second occasion on which it had been dishonoured because that would agree with the lapse of time.

He also says that in effect that Mr Baxter was unreasonable in not acceding to his offer that if he waited until after the Easter weekend or perhaps sometime during the weekend, he would be able to get cash from Mr Bell's other restaurant in Torquay. In our view the Tribunal was amply justified on the evidence before it, and would be equally amply justified on the way Mr Bell wishes to put the facts, in finding that there was a breach of contract and wrongful dismissal in the failure to pay Mr Baxter's wages or to make the amount of the dishonoured cheque good. Mr Bell, in his letter to which I have referred, made it clear that he told Mr Baxter at that time that if he left at that moment he need not return, so that there was plainly a dismissal and a wrongful dismissal. For that reason we do not consider that the appeal should go forward on that point.

Coming to the last matter, the matter of compensation, there we say as little as is needed simply to indicate the nature of the point because there we do consider that the matter should go to a hearing and therefore we do not wish to say anything which will prejudge the result of that appeal. The nature of the issue is this, that Mr Bell's account to us is that when he turned up at the hearing and wished to take part in it, he had with him two witnesses who would be able to speak to the fact that Mr Baxter was employed over the Easter weekend, and on at least two other occasions during the period for which he was awarded damages as being out of employment, and only one of those occasions was admitted by Mr Baxter to the Industrial Tribunal and taken into account. We say no more about the prospects of that. We are satisfied that it should go forward to a full hearing.

The order therefore is that this matter shall proceed to a full hearing on damages only, subject to the decision of the Employment Appeal Tribunal at that hearing on the preliminary point concerning the Notice of Appearance.