United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR MARTIN LUCKHURST (Representative)


 


JUDGE A WILKIE QC:

1. This is an appeal by Abbey Direct Home Sales against a decision of an Employment Tribunal sitting at Ashford on 26 August 1999; that there was a transfer of an undertaking from Greenleaf Estates Ltd t/a John Ludlam & Co to Abbey Direct Estate Agents and that they, as the Third Respondents to Mrs Hollobon's application, are liable for the Applicant's claims in respect of wages due and owing, damages for breach of contract, a redundancy payment and holiday payment, in consequence of which Abbey Direct Estate Agents was ordered to pay the Applicant £3,381.00p.
2. Mr Martin Luckhurst, who is one of the principals of Abbey Direct Home Sales, has attended today to advance an appeal which was received by this Tribunal on 13 October 1999. That Notice of Appeal dated 12 October was signed by Solicitors to the Third Respondent.
3. We have to say that we have some sympathy for Mr Luckhurst, and some admiration for the way in which he has endeavoured manfully to try to answer the questions which we have posed to him and to put forward what, in our judgment, is an utterly hopeless appeal.
4. The ground of appeal essentially is that the Tribunal erred in law by making a decision without hearing evidence or representations from the Third Respondent. That is particularised in the Notice of Appeal in the following way:

"In or about the first week of August 1999, the third Respondent was notified of the hearing of the industrial tribunal and telephoned the offices of the industrial tribunal to seek advice in regard to what action should be taken in regard to the notice of the claim. The third Respondent's officer was advised that there was no need for a representative of Abbey Direct to attend the hearing and that the documentation had been sent to the firm on an information only basis."

5. Either prior to or in parallel with launching that Notice of Appeal, the Third Respondent had applied for a review of the Tribunal's decision. That application for a review was refused on three grounds. Firstly, that the Third Respondent did not enter any Notice of Appearance in respect of Mrs Hollobon's application. Secondly, that the application for a review was outside the time limits specified in the Rules and thirdly, in the opinion of the Chairman, the application for a review had no reasonable prospect of success. That decision was set out in a document containing Extended Reasons and it was sent to the parties on 2 November 1999.
6. Mr Luckhurst, after some initial hesitation, has acknowledged that he received and read that document. That document set out in some detail the history of the application. The initial application by Mrs Hollobon had been launched on 24 May 1999 and was made against John Ludlam & Co of The Clockhouse, 72 High Street, Deal. It records that on 14 June the Secretary of State was joined as Second Respondent by Order of the Tribunal.
7. By a letter received on 22 June it records that the Applicant's representatives applied to join Abbey Direct Estate Agents to be substituted as Respondent and by an Order made on 22 June, by the Tribunal, Abbey Direct Estate Agents was added as the Third Respondent. Paragraph 4 of the Extended Reasons on the application for review says as follows:

"4. The notice of these proceedings was sent to Abbey Direct Estate Agents by letter dated 24 June 1999 and that letter directed them to enter an appearance within 21 days. No such appearance was entered."

Paragraph 5 then says:

"5. On 2 July 1999 a notice of hearing was sent to all parties notifying them that the hearing would take place at 10 am on Thursday 26 August 1999. This notice of hearing was sent to the Third Respondents at The Clockhouse, 72 High Street, Deal and also stated 'appearance not entered for information only'."

In paragraph 6, it records that:

"6. On 26 August Mr Luckhurst, on behalf of the Third Respondent telephoned the Tribunal office. The file note of that conversation reads:

'Mr Luckhurst from Abbey Direct. He took over the office, not the company. He took the office furniture though the Official Receiver and told the staff to remove their personal belongings. He said he would write to us via a solicitor to explain all this'."

Apparently, no such letter was ever received.

8. Because the Notice of Appeal essentially alleged either misconduct or negligence on the part of either the Employment Tribunal or its staff, a requirement was imposed by this Tribunal, by a letter dated 12 January sent to Abbey Direct Home Sales, that a sworn affidavit be provided together with a draft Notice of Appearance. No such sworn affidavit was received within the time provided for in that letter and no draft Notice of Appeal has ever been received by this Tribunal.
9. As a consequence on 29 February 2000 this Tribunal, through its Registrar, ordered that "unless an affidavit and draft Notice of Appearance is received within 10 days of the date of this Order, the Notice of Appeal will be struck out".
10. An affidavit was filed, sworn by Mr Luckhurst on 9 May 2000 and received some few days later. It is fair to say that paragraphs 2 to 7 set out his case that he did not take over the business, or at the very least was misinformed by the Liquidator and Official Receiver who assured him that the arrangements would not amount to a take-over of the business and it may well be that that would suffice as a draft Notice of Appearance were this matter to go further.
11. The important paragraph from our point of view and in support of this appeal however, is paragraph 1 of that affidavit. That says:

"1 On receipt of the letter 4 July 1999, informing me of the Tribunal Hearing, I rang the office dealing with the case and was told by one of the staff that the letter was [for] information only and that I did not need to attend the Hearing. I rang a few days later and was told that the document was only cc [copied] to Abbey Direct Home Sales which again inferred that I did not need to attend the Hearing."

12. The affidavit contains no mention whatsoever of the Notice of Proceedings which was sent to Abbey Direct Estate Agents by a letter dated 24 June, which letter was referred to in the decision of the Tribunal Chairman on the application of a review and sent to the Third Respondent on 2 November, some six months prior to the affidavit.
13. This morning we drew Mr Luckhurst's attention to the terms of that standard form letter dated 24 June, which appears in the appeal bundle at pages 25 to 26.
14. Paragraph 1 makes it perfectly clear that Abbey Direct Estate Agents was now a Third Respondent to the application.
15. Paragraph 2 makes it clear that they were required to enter an Appearance within 21 days of receiving the copy of the application and it indicates that they could do so, either by filling in a form or by sending a letter and it gave reference to the availability of help in completing the Notice of Appearance either from an Employer's Association or other professional adviser. Thus Mr Luckhurst was put on notice, if he received this letter, of the requirement to enter a Notice of Appearance and the desirability of seeking advice.
16. Paragraph 3 makes it clear that a late Notice of Appearance may not be accepted and if it were to be late then they should set out why the Notice was not presented in time.
17. Paragraph 4 of that letter says as follows:

"4. If you do not send me the form or a letter as requested above you will not be entitled to take any part in the proceedings (except to apply for an extension of time to enter an Appearance). If you do not take part, a Decision which may be enforceable in the County Court may be given against you in your absence. Whether or not you enter an Appearance you will be notified of the date of the hearing and sent a copy of the Tribunal's Decision."

18. Thus, this letter makes perfectly clear to whoever read it and understood it, that there was a requirement to put in a Notice of Appearance. If no such Notice was put in, they would not be allowed to take part in the eventual hearing but, nonetheless, they were at risk of an enforceable Order being made against them in their absence. But it did also indicate that, even if they did not enter a Notice of Appearance, they would nonetheless be told of the date of the hearing (in parenthesis) "for information only".
19. It therefore strikes us that the conversation recorded by Mr Luckhurst, as having taken place after he was given notice of the hearing, may well have taken place in the terms that he recollects, notwithstanding the fact that it does not accord with the note on the Tribunal's file of a conversation which took place on the date of the hearing itself. But if what was alleged to have been said by the Tribunal personnel was said, it did no more than accurately set out the gist of paragraph 4 of the letter giving notice of the proceedings to Abbey Direct Estate Agents.
20. Mr Luckhurst told us that he practises as an Estate Agent and an independent Financial Adviser; that he has operated as an Estate Agent with his own company for three years, as an independent Financial Adviser on his own account for three and a half years and that for ten years prior to that he acted as a Financial Adviser. He told us that he had various qualifications or registrations with associations concerning Estate Agency and Financial Advisers. He is therefore a professional man, conducting a professional business in which manifestly the importance of reading, understanding and responding to correspondence is paramount.
21. Before us he differed in his attitude to the letter of 24 June. At one stage it appeared that he might be saying he never received it at all, but it is perfectly clear that his memory is extremely hazy and the highest that he can really put it is that he cannot recall receiving and reading it and understanding the implications of that document. It seems to us highly likely that he did receive it. Whether he read it, and if he read it whether he understood its implications may well be in doubt, but we are persuaded that he must have seen it because otherwise he would, if he had read the Decision properly (and by that stage he was obviously interested in the matter) have taken issue with what is said in the Tribunal's Decision on his application for review which records that he had been sent this document on 24 June. The fact that in his affidavit in support of this appeal he makes no mention of not having received the document of 24 June, indicates to us that he must have received it.
22. Mr Luckhurst, in effect, says that he did not take his own independent professional advice on the question whether the agreement he was going to enter into with the Liquidator or Official Receiver or John Ludlam & Co would amount to a transfer of an undertaking. He simply took on trust the assurance of the Liquidator and the Official Receiver. It appears that he, for whatever reason, decided not to put in a Notice of Appearance, notwithstanding the fact that anyone reading that Notice would have understood that by so doing the Third Respondent was precluding itself from taking part in the hearing and was putting itself at risk of having a judgment entered against it.
23. Accordingly, we can find nothing that is even arguably erroneous either in the Decision of this Employment Tribunal or in the fact that they went ahead with the hearing in the absence of Abbey Estate Agents. As far as they were concerned a Notice of the proceedings had been sent, no Notice of Appearance had been entered and they were perfectly entitled to hear the case in the absence of the Third Respondent.
24. There is nothing in what he has said in his affidavit which compels us to conclude that this Tribunal did reach an erroneous conclusion as a matter of law and therefore, for all these reasons, we regret, although we appreciate that it must have come as a shock to Mr Luckhurst to be landed with a bill for £3,000 odd, there is nothing arguable in his appeal and therefore we dismiss this appeal at this stage.