United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RESTRICK (of Counsel) Instructed By: Messrs Glasners Solicitors 15 Red Lion Square London WC1R 4QH


 


JUDGE A WILKIE QC:

1. This case has been listed before us today for a preliminary hearing of an appeal by Sam Silver (Kensington) Ltd against decisions of the Employment Tribunal sent to the parties on 16 February 2000, after a hearing on 7 February 2000, in which judgment was entered on a variety of claims for deduction for wages, unfair constructive dismissal and so on, in the sum of £10,900 and odd pounds, in favour of Mr Hojjat against the Appellant Company.
2. The proceedings began by an Originating Application, dated 19 November 1999, against the Company which was sent to the Office of Employment Tribunals and was then forwarded to the Company's address at 6 Lancer Square, Kensington Church Street, London W8. No Notice of Appearance was entered by the Company, nor was any application ever made until 10 July 2000 for an extension of time to enter a Notice of Appearance.
3. At the outset of the hearing of the case a question arose whether the Company was the correct Respondent or whether Mr Hojjat's employment relationship was with Mr Sam Silver. The Chairman indicated to the lay representative of Mr Hojjat that if the latter were the case then, in effect, her client would have to start from scratch. Unsurprisingly, she decided to go ahead. It appears that on the basis of evidence from Mr Hojjat as to his understanding that he had been employed by the Company and, indeed, had taken his proceedings against the Company, the application succeeded, as against the Company.
4. On 29 February 2000 the Company, acting by its Director, Mrs Silver, applied for a review of the Employment Tribunal's decision on substantive grounds principally that it should not have been the Respondent to the proceedings, since it was never the employer of Mr Hojjat, because it only started to trade in October 1999, some two months after Mr Hojjat had ceased to be employed in the business. Other points were raised as to the arithmetic calculation of the sum awarded.
5. On 2 March the Tribunal replied to that application for review to the effect that, as there was no Notice of Appearance, it could only consider a review under paragraph 11 (1) (b) of the Employment Tribunals Regulations 1993, namely that the party seeking the review did not receive notice of the proceedings leading to the decision.
6. The appeal launched thereafter by the Company in a Notice of Appeal signed by Mrs Silver was a wholesale appeal against all the aspects of the Tribunal's original decision, as well as against its refusal to grant a review. No attempt, until 10 July, Monday of this week, was ever made by the Appellant to take up the suggestion, implicit in the letter of the Chairman, to seek a review on the grounds that it had not received notice of the application or, as an alternative stratagem to apply for an extension of time for entering an appearance.
7. We have been addressed this morning by Mr Restrick of Counsel, instructed by Solicitors, very fully and ably on the question, principally, of whether we should grant an adjournment of this appeal. It appears that it was not until very late on, probably this week, that the Company sought legal advice as a consequence of which sensible decisions were taken to advance this matter, by launching the applications before the Tribunal to place the Company as a party before the Tribunal.
8. In the meantime, there had been some correspondence between the Tribunal and the Applicant's representative at the Camden Tribunal and Rights Unit. As a result of that correspondence and subsequent researches into the official records of the history of the Company, the Applicant has sought a review of the Tribunal's decision in which, as we apprehend, the question will be raised whether, in truth, the Applicant was employed by Mr Silver personally. If so, he should be the Respondent rather than the Company which, presumably, would either be a Second Respondent to the application or will be dropped from the proceedings entirely.
9. There is a hearing scheduled for 7 August at which that application for a review by the Applicant will be heard as well as the Company's application for a review on the basis that they did not have notice of the proceedings, alternatively for an extension of time to put in a Notice of Appearance.
10. As things presently stand, however, no Notice of Appearance has yet been entered and at the time when this appeal was launched and this hearing was arranged by it being set down for a preliminary hearing, there was no application for an extension of time for entering a Notice of Appearing. That application was only made on 10 July 2000.
11. We have little doubt that the points of substance raised in the Notice of Appeal are arguable and may have considerable merit, not only the arithmetical points but also the question who should be or have been, the Respondent.
12. However, in circumstances such as these, the Practice Direction, provides that the Appellant will not be permitted to pursue the appeal unless we are satisfied at a preliminary hearing that there is a good excuse for failing to enter a Notice of Appearance or for failing to apply for an extension of time. Unless Mr Restrick and his client surmounts that hurdle, the question whether there is a reasonably arguable defence to the claim is not one which we can consider or, at any rate, is not one which will enable him to get his appeal onto its feet.
13. Mr Restrick this morning asks that we should adjourn this appeal, pending the outcome of the proceedings before the Employment Tribunal on 7 August. He acknowledges that, as there is presently standing a decision of the Employment Tribunal, then whether we today permit his appeal to go ahead to an inter partes hearing or adjourn it or hear it and dismiss it as disclosing no reasonably arguable basis for an appeal, the outcome will be that the decision of the Tribunal made in February 2000 will continue to stand and it will be available to be reviewed, both at the behest of the Applicant and on the basis of his client's application for an extension of time to put in a Notice of Appearance. He, however, says that the scheme of the rules envisage that, if an application has been made to the Employment Tribunal for an extension of time for entering a Notice of Appearance, then one of the conditions for the appeal being immediately set down to be heard as a preliminary hearing does not arise. He is placed in a cleft stick whereby at the time the matter was set down, there was no such application but, very much at the last minute, steps had been taken to try to put the Company's role in this litigation on to a sensible footing and there is therefore, now, an application before the Employment Tribunal for an extension of time for so doing. He therefore argues that in these circumstances the structure of the arrangements are such that this is a strong reason for us to grant his adjournment, even at this extremely late stage in the day.
14. We have thought long and hard about this. In order to get the appeal on its feet Mr Restrick requires to persuade this Tribunal that there was a good excuse for failing to enter a Notice of Appearance or thereafter for failing to apply for an extension of time. As part of his argument for an adjournment we have heard substantial amount of argument on this issue. Mr Restrick has indicated that if we refuse his adjournment he reserves the right to argue further on this point. We apprehend, however, that we have heard the substance of his argument.
15. In essence, it amounts to three points. First, as Mrs Silver and the Secretary of the Company, Mr Shamsi, being the Officers of the Company, did not have any idea that the Company was the subject of such an application against it by Mr Hojjat, then the Company does not have sufficient notice of the proceedings so that its failure to enter a Notice of Appearance is excusable even though the notice of the proceedings were sent to the Company's trading address.
16. The factual basis for this is affidavit evidence to the effect that Mrs Silver was unaware until some time in February of these proceedings. Accepting, of course, the veracity of that evidence, that argument seems to founder on what Mr Restrick has acknowledged is the case, that as long as an authorised agent of the Company is aware of the proceedings and has read them, then this first point really has no merit.
17. Mr Restrick argues secondly, that Mr Silver was not an authorised agent so as to fix the Company with notice of the proceedings. It is plain from the affidavit evidence that Mr Silver did have awareness of Employment Tribunal proceedings because he opened them and read them. In his affidavit he said that he misread them and did not understand that the application was made against the Company.
18. What Mr Restrick seeks to argue is that Mr Silver, having ceased to be the Director of the Company, was not an authorised agent of the Company. Had we been deciding this matter we would have had very grave reservations about accepting that as a submission. We observe that throughout these proceedings correspondence from the Company has been on headed notepaper, headed in the Company name but, immediately under it, referring to Sam Silver and giving the details of his professional qualifications. Furthermore, on 30 September 1999, a document exhibited to his affidavit on exactly the same headed notepaper he writes to prospective creditors to the effect that the practice has been incorporated, henceforth to be known as "Sam Silver Kensington Ltd, trading as Sam Silver" and asking that all future invoices be addressed to that Company, signing it "Sam Silver". It seems to us that this way of corresponding with persons who do business with the Company manifestly holds Mr Silver out, at the very least, as an authorised agent of the Company by virtue of the letter heading and it is plain, from the content of that letter that, as far as future business was concerned, he was authorised to give directions as to financial controllers of persons who dealt with the Company.
19. There is nowhere in any of the affidavits any explicit statement that Mr Silver was not an authorised agent of the Company. There are certain statements to the effect that he was not very well, perhaps he did not understand the import of certain of the documents he was reading, perhaps he was somewhat careless in the way that he wrote certain letters ostensibly on behalf of the Company.
20. In the light of the decision which we are to make we do not have to come to any final view on this, but we have to say that we view the argument put forward by Mr Restrick that Mr Silver was not an authorised agent with great scepticism and we would have needed considerable persuasion in any further argument to conclude on that basis that there was any good excuse for failing to enter a Notice of Appearance on the basis that the Company, through its authorised agent, had no notice of the proceedings.
21. A further aspect of this second argument is, that Mr Silver was not well and therefore that is a good excuse. It seems to us that there is little merit in that argument, though no doubt Mr Restrick would have been free to develop it. Mr Silver seemed compos mentis in writing what seemed to be sensible business letters to financial controllers, describing the future situation accurately, in accordance with the other affidavits in evidence, to the effect that the Company did take over the business side on 1 October and that therefore they were the appropriate party to whom all future invoices should be sent.
22. Mr Restrick has sought to develop a third argument to the effect that, because it must have been obvious to Mr Hojjat that Sam Silver was the proper Respondent and not the Company, somehow or other that feeds into the quality of the excuse for failing to enter a Notice of Appearance. For the sake of argument we were persuaded that, if the excuse given was a conscious decision to ignore proceedings simply because of some history of harassment or mischief-making by some individual who had absolutely no conceivable claim on a Company but was making their claims entirely mischievously, then that might feed in to the question of there being a good excuse. Unfortunately for Mr Restrick that is not Mr Silver's case. His case is one of inadvertence, perhaps brought about by stress. Certainly the evidence accepted by the Employment Tribunal was that Mr Hojjat did think he was employed by the Company and manifestly so because otherwise he would not have brought the proceedings against the Company. Therefore, whilst that might, in other circumstances, be a basis for establishing a good excuse, we again would have great difficulty in accepting it as an argument supporting a good excuse for failing to enter a Notice of Appearance.
23. However, we are persuaded, despite all our misgivings, not finally to dispose of this appeal but rather to adjourn it in order to permit the Employment Tribunal on 7 August to review the whole unhappy situation and to put matters to right. In this we are particularly influenced by the fact that Mr Hojjat and his representative sensibly appear to accept the position that it may be that they have attacked the wrong party and that the correct party may be Mr Silver. That, of course, is not a matter with which we have to deal today, but we think it right that we should do nothing which would potentially impede the Employment Tribunal reviewing the matter in its entirety and putting it, if need be, on to a proper footing.
24. We have, however, thought it right, though not actually required to decide the point, to make clear our extreme scepticism as to the points made by Mr Restrick on behalf of his corporate client, on the question of a good excuse for not entering a Notice of Appearance in order that he and his lay client should be under no misapprehension as to the view that we take on the way in which this litigation has been conducted by his lay client. It is apparent, from what we were told this morning, that even though Mr Hojjat's employment ceased in August 1999 and even though it appears to be acknowledged by Mr Silver personally that he owes substantial sums by way of wages to Mr Hojjat, thus far Mr Silver has not seen fit to pay a penny piece to Mr Hojjat. In the meantime the Company has spared no effort in pursuing the issue of who should be the correct Respondent before the Employment Tribunal in respect of this matter.
25. Nonetheless, in the broader interests of justice, we are persuaded that there should be an adjournment and that is what we order.