United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTIN BALE Solicitor Instructed by Messrs Hammond Bale Solicitors 27 New Bond Street London W1Y 9HD


 


JUDGE PETER CLARK

1. This is an appeal by the Respondent to these proceedings, Gabriele Bramante, against a decision of a Chairman, Mr I H Walker, dated 14 December 1999, (the review decision) dismissing her application for a review of his original decision promulgated on 18 November 1999 following a hearing held at the London (N) Employment Tribunal, that Chairman sitting alone, upholding the Applicant, Mr Castle's complaint of unauthorised deductions from wages and breach of contract and awarding him compensation in the total sum of £3,440.84, subject to adjustment in the event of the Respondent having failed to encash a cheque from the Applicant for £530.75. (the original decision).

No Notice of Appearance

2. Because the Respondent neither entered a Notice of Appearance in the course of the proceedings below nor applied for and was refused an extension of time for doing so, the practice set out at paragraph 16 of the Employment Appeal Tribunal Practice Direction applies. Pursuant to that direction the Respondent has lodged an affidavit with exhibits sworn on 6 March 2000 and the Applicant has replied by an affidavit sworn on 13 April 2000.

Chronology

3. The Respondent carried on business as an architect under the style Bramante Architects. The Applicant took employment with her as an architect on 5 January 1999. On 3 August 1999 he was summarily dismissed.
4. On 1 September 1999 he presented an Originating Application to the Employment Trinunal. His claim was for salary for the month of July; one month's pay in lieu of notice, holiday pay and a small expenses item. The Respondent received a copy of that claim form on about 10 September 1999. Under rule 3(1) of the Employment Tribunal Rules of Procedure she then had 21 days in which to enter a Notice of Appearance, subject to her making application to the Tribunal for an extension of time. She did neither.
5. It is common ground between the parties that they spoke on the telephone on 28 September. The Respondent contends that terms of settlement were reached between them; the Applicant denies that agreement was reached then or at any later time.
6. On 29 September the Respondent wrote to the Applicant, enclosing her cheque for £530.75 in settlement, trusting that this resolved matters.
7. Initially, the Applicant banked that cheque, but after taking advice from his local Law Centre he wrote to the Respondent on 7 October, indicating that he was not prepared to settle in the sum proffered by the Respondent and returning that amount in the form of his own cheque.
8. At about that time the Respondent received from the Employment Tribunal a notice of hearing for this case, to take place on 10 November 1999 and on 12 October the Tribunal wrote to the Respondent in these terms:

"As no reply has been received to our letter of 8 September 1999, a Chairman has instructed that this case be listed as Appearance Not Entered."

It is at the discretion of the Tribunal whether or not a late Notice of Appearance is accepted."

9. Further negotiations took place between the parties through an ACAS conciliation officer, Giles Vicat, but to no avail.
10. On 9 November, the day before the hearing fixed for 10 November, the Respondent both telephoned and faxed the Employment Tribunal offices, seeking a postponement of the hearing. She spoke to members of staff there, Mr Axtell and Ms Munro.
11. No postponement order was made by a Chairman on 9 November.
12. On 10 November the Applicant appeared in person before the Chairman, Mr Walker; the Respondent did not attend. The Chairman then considered the Respondent's application for a postponement and rejected it. He then proceeded to hear the Applicant's evidence, which he accepted as truthful, and made the orders to which we have earlier referred.
13. The original decision, sent on 18 November, was not received by the Respondent until 2 December due to postal delay caused by industrial action in her area. On 3 December she wrote to the Tribunal applying for a review of the original decision under rule 11(1)(b) and (e) of the Employment Tribunal Rules of procedure. The first of those grounds is that she did not receive notice of the proceedings leading to the original decision. She did have notice, in October 1999, of the 10 November hearing, as she accepts in her affidavit at paragraph 8. The second ground is that the interests of justice require review.
14. That application was considered and rejected by the Chairman for the reasons he gave with the review decision. By a Notice of Appeal dated 25 January 2000 the Respondent appealed against the review decision. There is no appeal against the original decision.

The Appeal

15. The basis of the Respondent's appeal, advanced by Mr Bale, on her behalf today may be summarised in this way:

"I thought that the case would settle, hence I did not enter a Notice of Appearance and I assumed that I would be granted a postponement of the hearing fixed for 10 November, unless I heard to the contrary, hence I did not attend on that day."

16. In our judgment that will not do, for the following reasons;

(1) Rule 3(2) of the Tribunal Rules of Procedure is clear. A Respondent who has not entered an appearance shall not be entitled to take part in the proceedings except for the following purposes;

(a) to apply under rule 15 for an extension of time. The Respondent did not make that application.

(b) to make an application for further and better particulars of the Originating Application and/or for discovery. She did not do that.

(c) to apply for a review on the basis that she was not given notice of the hearing. She received notice.

(d) to be called as a witness by another. She was not.

(e) to be sent a copy of the original decision. She did receive a copy.

17. It follows, in our judgment, that strictly under the rules she had no standing to apply for a postponement of the 10 November hearing.

(2) Under paragraph 16 of the EAT Practice Direction an appeal will not be allowed to proceed beyond this Preliminary Hearing stage, where no notice of appearance was entered below unless

(a) the Respondent can show a good excuse for failing to enter a notice of appearance and to apply for an extension of time for so doing and

(b) there is a reasonably arguable defence to the Applicant's claim.

Those 2 requirements are conjunctive. Having considered the draft Notice of Appearance exhibited to the Respondent's affidavit we shall assume, without deciding, that she had a good arguable defence to the claim, in part at least. Has she provided a good excuse?

We think not. The only excuse proffered is that she thought the case would settle. That does not seem to us to be a good excuse in any circumstances, but particularly where, by his letter of 7 October, the Applicant made it clear that he was not prepared to compromise his claim for £530.75, and he returned that sum to the Respondent. There is no suggestion by her that agreement was reached at any later stage.

She was expressly put on notice, by the Tribunal's letter of 12 October that the case was to be listed as Appearance not entered, with all that entailed under rule 3(2). She took no steps then or later to remedy the position before her last minute adjournment application on 9 November. Mr Bale asked us to accept the explanation put forward by a litigant in person. First, we do not draw distinction between litigants in person and those who were represented. It is the obligation of all parties to have knowledge of the Rules of Procedure which apply, and in any event we note that she is a professional woman, no doubt well used to dealing among other things, with not uncomplicated building contracts.

(3) It follows that the Chairman was under no obligation to consider her postponement request. But he did so. Since she had not attended to explain herself he cannot be criticized for refusing the application. She was not in our view entitled to assume, having made the postponement application that it would be granted without more.

(4) Even if he could be criticized, this appeal is not against the original decision but the subsequent review decision. Again, under the rules, we are not satisfied that the Chairman was required to consider an application for review under rule 11(1)(e), that under rule 11(1)(b) being misconceived. But he did. Even if he was obliged to do so, and even if the Respondent persuaded us that she had a good excuse for not entering an appearance, which she has not, we would have held that his refusal to grant a review hearing under rule 11(1)(e) was a permissible finding.

18. In all these circumstances and for these reasons we must dismiss this appeal.