United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P DAHLSEN (of Counsel) Messrs Jaswal Solicitors 15 Crawford Street London W1H 1PF
For the First Respondent For the Second Respondent	MR SPRATT IN PERSON MISS MARSH IN PERSON


 


JUDGE PETER CLARK: The background to this appeal is that the Applicants, Mr Spratt and Miss Marsh, brought complaints of unfair dismissal by reason of their nationality and unauthorised deductions from their wages against their former employer, the Respondent, Jamaica Taverns Ltd. Mr Spratt also complained of breach of contract.

1. The Respondent entered Notices of Appearance to each complaint, resisting the claims, through their Solicitors, Jaswals of 15 Crawford Street, London. Both Notices were received by the Stratford Employment Tribunal on 17 July 1997.
2. The cases were eventually listed for hearing together on 26 January 1998. On that occasion the Applicants were in person; the Respondent did not appear and was not represented. The Tribunal proceeded to hear the case in the absence of the Respondent, found for the Applicants, and made the declarations and awards set out in their Decision with Extended Reasons promulgated on 6 February 1998 (the substantive decision).
3. By a letter dated 12 February 1998 the Respondent's Solicitors, Jaswal, applied for a review of the substantive decision on the grounds that they did not receive notice of the hearing which had taken place on 26 January.
4. In support of that review application Sandeep Singh Jaswal, a partner in the firm of Jaswal, swore an affidavit on 6 March 1998 stating that his firm did not receive the Notice of Hearing for 26 January.
5. The matter came back before the same Tribunal sitting at Stratford under the chairmanship of Miss A.M. Lewzey on the review application on 16 June 1998. As to the ground for review under rule 11 (1)(b) of the Employment Tribunal Rules of Procedure; that a party did not receive notice of the proceedings leading to the original decision, the Tribunal, having heard evidence from Mr Jaswal, who was cross-examined by Mr Spratt on behalf of the Applicants, directed themselves in accordance with section 7 of the Interpretation Act 1978, that service of notice of hearing is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of the post.
6. The Tribunal found, in a Review Decision promulgated with Extended Reasons on 1 July 1998, that the Respondent had not proved, on the balance of probabilities, that the relevant notice of hearing dated 30 October 1997 was not received by their Solicitors. Their reasons for so finding were as follows:

"(b) The Respondent has never requested from the Tribunal an additional copy of the original notice of hearing dated 30 October 1997.

(c) The Tribunal took note that the original notice, the notice of hearing dated 3 April 1998 for the hearing that did not take place on 21 April 1998, and the notice of hearing dated 11 May 1998 for today's application for review all bear the same address for the Respondent's representative.

(d) The Respondent's representative, Jaswal, Solicitors, appeared at the hearing on 21 April 1998 and today.

(e) The Tribunal finds it strange that Jaswal did not contact the Industrial Tribunal between their letter of 4 August 1997 and their application for review dated 12 February 1998, a period of six months.

(f) Mr Jaswal in evidence could not recall what his firm did in relation to another case before the Tribunal against the Respondent relating to Mr Stapley. Mr Spratt for the Applicants submits that at that hearing the Respondent did not appear either."

7. The Tribunal further went on reject the review application under rule 11 (1)(c) and (e).
8. Against the Review Decision this appeal is brought. In support of the appeal Mr Jaswal swore a further affidavit on 3 September 1998. In that affidavit he said this:

"4. On 16th June 1998, I gave evidence, on oath, at the hearing of an application for review of the Tribunal's decision of 26th January 1998. My evidence in chief confirmed the contents of the letter to the Tribunal of 12th February 1998 and the affidavit of 6th March 1998, that the notice of hearing of 26th January 1998 was not received by my firm.

5. I do not recall being challenged in cross-examination as to whether I had received the notice of hearing, nor as to the office procedure for incoming mail or the likelihood of mail going astray. I do recall that in cross-examination I was asked by Mr Spratt whether I had attended a Tribunal hearing concerning the Appellants and another former employee of the Appellant company and if not, why not. Having no forewarning of the question, on the spur of the moment I could not recall the circumstances and details of that case and therefore told the Tribunal that I could not recall.

6. It was never put to me or even suggested to me that I was not telling the truth when giving evidence.

7. I was therefore shocked and dismayed when the Tribunal implicitly disbelieved the evidence I had given on oath, in giving its decision to refuse the application for review.

8. I should make one further point: apart from an assertion made by the Chairman of the Tribunal, no evidence was before the Tribunal establishing that the notice had been correctly sent to my firm."

9. The Chairman, Miss Lewzey, commented on that affidavit by letter to the Employment Appeal Tribunal dated 17 September 1998. In that letter she said this:

"1) The head of review that Mr Jaswal complains of in his affidavit is the application under rule 11 (1)(b) that his client did not receive notice of the proceedings.

2) Paragraph 8 of the affidavit refers to an assertion by the Chairman that the notice was sent. The Tribunal had before it the copy notice on the Tribunal file and the Chairman advised the parties of this.

3) The Tribunal did not disbelieve Mr Jaswal's evidence, rather it was mindful of the provisions of the Interpretation Act and the copy of the notice on the Tribunal file.

4) Mr Jaswal says in paragraph 5 of his affidavit that he does not recall being challenged in cross examination as to whether he received the notice of hearing or on office procedures. The Chairman's notes record that in answer to questions put by the Tribunal itself Mr Jaswal gave evidence that his firm's offices were in the basement of 15 Crawford Street and that there were estate agents upstairs. He told the Tribunal that he or his partner stamps incoming post.

5) The Tribunal did not disbelieve Mr Jaswal. It found that the Respondent had not rebutted the presumption in Section 7 of the Interpretation Act."

10. The appeal was listed for Preliminary Hearing on 4 December 1998 before a division of the Employment Appeal Tribunal presided over by Judge Altman. On that occasion the Appeal Tribunal rejected an argument based on the proposition that the Tribunal had not made a finding that the Notice of Hearing had been sent. However, the matter was allowed to proceed on this question of law identified by Judge Altman in his judgment in this way:

"… whether having said in response to the affidavit of Mr Jaswal sworn on 3 September 1998, and especially in relation to paragraphs 6 and 7 of that affidavit that they did not disbelieve him, it was then open to the Tribunal as a matter of law to find that he had not rebutted the presumption in the Interpretation Act as to receipt of the notice in this case."

11. It follows that the sole issue before us at this full appeal hearing does not arise directly from the Employment Tribunal's promulgated Review Decision and Extended Reasons, nor from the original grounds of appeal, but from a purported tension between those reasons and the Chairman's subsequent letter commenting on Mr Jaswal's second affidavit sworn in these appeal proceedings.
12. Mr Dahlsen submits that no reasonable Employment Tribunal could conclude that the Respondent here had failed to prove that service of the relevant Notice of Hearing had not been effected in circumstances where Mr Jaswal's evidence had not been disbelieved. That conclusion, he submits, is irrational: see Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440, paragraph 33.
13. He relies on the Court of Appeal decision in Thomas Bishop Ltd v Helmville Ltd [1972] 1 AER 365, where the unchallenged affidavit evidence before the Court from the defendant's Managing Director was that no copy of the writ had ever been received by the defendant. In these circumstances the Court of Appeal held that the Court was bound to assume that the writ had not been delivered at the defendant's registered office.
14. In the present case the evidence of Mr Jaswal was challenged by Mr Spratt before the Employment Tribunal. For the reasons given by the Tribunal they were not satisfied that the Respondent had proved that the notice of hearing was not received by them. Without more, following and applying the decision of this Appeal Tribunal in T & D Transport Ltd v Limburn [1987] ICR, 696, 699 H – 700A, we can see no grounds for interfering with that finding by the Tribunal. That we think was the approach of Judge Altman and his colleagues at the Preliminary Hearing.
15. Does the Chairman's letter alter that conclusion? We think not, for two reasons.
16. First, we do not accept that the position summarised by the Chairman at paragraph 5 of her letter is internally inconsistent. The Chairman, it seems to us, was merely saying that the Tribunal did not disbelieve Mr Jaswal's evidence as far as it went, but that it did not go far enough to rebut the presumption of effective service.
17. Alternatively, if there were to be an inconsistency between a Tribunal's promulgated decision and reasons and a subsequent letter to the Employment Appeal Tribunal from the Chairman, then in our judgment the promulgated decision and reasons must prevail. On that basis also the appeal must fail.
18. Accordingly, this appeal is dismissed.