United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S CLEGG (Representative) Instructed By: Messrs Barber & Co Solicitors Barber House 164 Deepdale Road Preston Lancashire PR1 6PY


 


MR JUSTICE CHARLES:

1. We have before us a preliminary hearing in an appeal which is brought by a company called Rhodi Manufacturing Ltd. The Respondent to that appeal is a Mrs M.S. Bhayat. Our function on a preliminary hearing is to consider whether there are any points that are reasonably arguable raised in the appeal.
2. The appeal is against a decision of an Employment Tribunal sitting at Liverpool, the Extended Reasons for which were sent to the parties on 23 August 2000. As I have said, the appeal is by the Respondent company to the proceedings before the Employment Tribunal. It, Rhodi Manufacturing, had not put in a Notice of Appearance to the claim made by Mrs Bhayat which was a claim of unfair dismissal and of sex discrimination.
3. The Employment Tribunal heard the case without any representative of the Respondent company being present. Their decision was that the Applicant was unlawfully dismissed for a reason connected with her pregnancy, contrary to section 99(1) of the Employment Rights Act 1996 and that the Applicant was unlawfully discriminated against on grounds of sex, contrary to section 6(2)(b) of the Sex Discrimination Act 1975, read with section 1(1)(a) and that she was dismissed because she was pregnant.
4. The Employment Tribunal went on to award the Applicant compensation of £14,344.69, including interest of £347.90. Included within that damages award was an award of £5,000 for injury to feelings and £5,000 for aggravated damages.
5. We have found this case to be very troubling. The reason for that is that a number of very serious allegations have been made in connection with it. In this context the Employment Tribunal heard evidence on oath from the Applicant. They acknowledge that she was not challenged as to that evidence but they found her (and I quote) "to be a completely credible witness". The facts that they found are in paragraphs 2 to 4 of the Extended Reasons. Those paragraphs are in the following terms:

"2 The Tribunal found the following facts proved. The applicant was employed by the respondent as a machinist from 1 May 1999 to 11 February 2000, when she was dismissed. The last day she actually worked for the respondent was 28 January 2000. On 25 January 2000 the applicant informed the respondent that she was pregnant and would begin her maternity leave in the week commencing 20 February 2000. Her expected date of confinement was 30 April 2000. Her notification of pregnancy was sent special delivery to the respondent and proof of delivery was before the Tribunal at document A21. The reason that the applicant left it so late to inform her employer of her pregnancy was because she did not want to be dismissed. Another girl at the factory called Hafida, was dismissed instantly when she announced her pregnancy and said that she wanted to go on maternity leave. The applicant's normal working hours were from 9 am to 5:30 pm Monday to Friday and her contractual working hours were 39 per week. The applicant arrived at the respondent's premises on 31 January 2000 to be told to go home. As with Hafida, the applicant was told that due to a shortage of work there was no work for her. She was told this by her boss, whom she knew as Asif Patel, also known as Asif Desai. The applicant had been a machinist in the jeans department from November 1999 and knew that the jeans department was extremely busy day (sic). The applicant asked when she would start work again and Asif replied that she was to keep trying. When the applicant turned up for work each day and was told that there was no work for her, she noted that others were working as usual.

3 The applicant then attended the respondent's premises for two weeks, but was given no work. When she finally attended on 11 February, Asif told her that she was dismissed. She asked for written reasons for her dismissal and for her pay. He informed the applicant that she should not bother coming to the premises again, because she would not receive any written reasons for her dismissal, nor would she receive a penny from the respondent. The applicant was extremely distressed at being dismissed. Her wages formed a significant part of the family's budget. She received no statutory maternity pay, because of this dismissal. She had no written contract of employment and despite a letter being sent on her behalf from the Citizens Advice Bureau asking for written reasons, none have been received. She was not paid for statutory holidays. A questionnaire under section 74 of the 1975 Act was served on the respondent directly by the Citizens Advice Bureau. No reply has been received.

4 Finally, on Friday 30^th June 2000 Asif Patel telephoned the applicant and said that if she went to Tribunal he would petrol bomb her house. These threats were reported to the police. Then a person called Feroze telephoned the applicant at 11 pm on the 3^rd July 2000 and threatened her. She was offered £1500 not to appear before this Tribunal. The Tribunal noted with concern a statement from Mr J.R. Withers of the Citizens Advice Bureau that he had been informed by the applicant's husband that there [had] been threats to the family from the respondent and that these threats were thought to be of such a serious nature that the police were informed. The applicant appeared at Tribunal unrepresented, because the Citizens Advice Bureau would not permit Mr Withers to represent her, because of the possible repercussions for himself and others in the Bureau."

6. Included within those findings are findings in relation to the dismissal relating to the Applicant's pregnancy, a failure to answer a questionnaire sent under section 74 of the 1975 Act and a finding that a Director of Rhodi Manufacturing threatened the Applicant that if she went to the Tribunal he would petrol bomb her house. That is clearly a very serious allegation and finding. It is noted that the police were informed. The findings also include a conclusion that the Applicant was not represented because the Citizens Advice Bureau would not permit their representative to represent her because of possible repercussions for himself and others in the Bureau.
7. So far as the conclusions on injury to feelings and aggravated damages are concerned, they are included in paragraph 11 of the Extended Reasons and that paragraph again emphasises how credible the Employment Tribunal found the Applicant to be on her unchallenged evidence. It is in the following terms:

"11 The Tribunal was extremely concerned at the behaviour of the respondent and the allegations of threats against the applicant. The fact that the applicant's representative was deterred from appearing before the Tribunal and the applicant herself might have been frightened into failing to appear made the respondent's alleged actions very serious indeed. [This] amounted to an interference with the administration of justice. The Tribunal acknowledges that it has not heard from the respondent, but the respondent's attitude has been so unsatisfactory throughout the conduct of this case and the Tribunal finds the applicant's evidence so credible, that it has decided to awarded aggravated damages to the applicant. The Tribunal awarded £5000 in injury to feelings, with a further £5000 for aggravated damages. It considers £5000 injury to feelings to be appropriate. This applicant was dismissed at a time when she was considerably vulnerable. This was her first baby and her wages were an important part of her family's income. It represents less than a year's wages."

8. That is a background to the issues which fall to be decided on this appeal. Paragraph 1 of the Extended Reasons contains the following passage:

"The respondent did not enter an appearance. On the morning of the hearing, the Tribunal received a telephone call asking the Tribunal to waiting while a representative attended. The Tribunal waited some time and in fact dealt with another case first. By that time the representative had still not arrived and the Tribunal received another telephone call from the respondent asking if the case could continue if the representative started out at that point. The Tribunal refused and went ahead with the case."

9. By a letter dated 4 September 2000 Solicitors instructed by Rhodi Manufacturing wrote to the Employment Tribunal seeking a review. What they said was:

"We write to advise you that we have been instructed by the Respondent to act on their behalf on the above matter.

To that end, we duly make this application for a review of the decision promulgated on the 23^rd August 2000. We make this application for the review on the following grounds:

(1) that our client was absent from the hearing when the decision was reached. He made desperate attempt to attend but arrived late as he was unfamiliar with the area and informed the Tribunal about the possible delay.

(2) That a review should be granted in the interest of justice.

We look forward to hear from you soon."

The response to that is a letter dated 5 September 2000, the next day, from the Employment Tribunal which is in the following terms:

"I acknowledge receipt of your letter dated 4 September 2000, copies of which have been circulated as indicated below.

The file was referred to a Chairman of the Tribunals, Ms E. Donnelly, who has requested that I respond in the following terms:

Thank you for your facsimile of 4 September 2000 which has been referred to the Chairman of the Tribunal who presided at the hearing. She draws your attention to Rule 3(2)(c) of the Employment Tribunals Rules of Procedure 1993 as amended (the Rules). The only ground on which a respondent who has not entered an appearance can request a review is that they did not receive notice of the proceedings leading to the decision. Your client clearly did and therefore there is no jurisdiction for the Tribunal to consider a review of its decision. Your client's only course of action is to appeal."

That is what the Rhodi Manufacturing has done.

10. Pausing there, and going back to the recitation of the factual position in paragraph 1 of the Extended Reasons, there is essentially common ground between the Employment Tribunal's statement and Rhodi Manufacturing in that on the morning of the hearing the Employment Tribunal were notified that a representative of Rhodi Manufacturing was proposing to attend.
11. The letter seeking a review refers to desperate attempts to attend but a late arrival. That does not accord with the penultimate sentence of the first paragraph of the Extended Reasons which, as we understand it, is an assertion that the Employment Tribunal received another telephone call to the effect that a representative of Rhodi Manufacturing had yet to set out to come to the Tribunal and would therefore they wait in those circumstances. That does not accord with what was said in the letter seeking a review. Equally, it does not accord with an affidavit put in before us by a Mr Chopdaat, who describes the events of that morning. Having described earlier events as to how he came across the Originating Application on 30 June 2000, what he says is as follows:

7 "I set out from my home in Blackburn at 8.15 am on the morning of the hearing to the Liverpool Employment Tribunals. The hearing was scheduled for 9.45 am and I believe that I have allowed myself ample time to be at the hearing.

8 I travelled along the M65, then the M66 and then onto the M62. I travelled down the M62 for about 2 miles when the traffic slowed down due to an accident about 10 miles down the motorway.

9 As a result of being held up in the traffic due to that accident, I eventually arrived into Liverpool at 10.45 am and was now looking for the Tribunal Building.

10 After finally finding the Building and parked my car, I walked to the Tribunal Building where I arrived at 11.35 am approximately.

11 Once in the building, I was directed by a security officer onto the floor where the hearing was taking place.

12 I went into the reception area and could not find anyone but there was a telephone for assistance.

13 I called the receptionist/secretary who told me that the case had already started and I was not allowed access to the courtroom but told that I shall receive the Tribunal's decision in writing.

14 I left the Tribunals Building almost immediately and went back to the office to inform my employers of developments from that morning."

12. That account does not accord with paragraph 1 of the Extended Reasons. Of course, an explanation for that could be that somebody else from Rhodi Manufacturing telephoned the Employment Tribunal that morning and, as would appear from the statement I have just referred to, the Employment Tribunal on Mr Chopdaat's account of events would not have known that he was in the building.
13. Turning to the relevant rules:

(a) Rule 3 which was referred to by the Chairman, provides as follows:

"3(1) A respondent shall, within 21 days of receiving the copy of the originating application, enter an appearance to the proceedings by presenting to the Secretary a written notice of appearance …"

(it then sets out what that should contain) and continues:

"3(2) A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except –

(a) to apply under rule 15 for an extension of the time appointed by this rule for entering an appearance;

(b) to make an application under rule 4(1)(a);

(c) to make an application under rule 11(4) in respect of rule 11(1)(b);

(d) to be called as a witness by another person;

(e) to be sent a copy of a document or corrected entry in pursuance of rule 10(5), 10(10) or 10(11);

and in the rules which follow, the word 'party' only includes such a respondent in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes.

(3) A notice of appearance which –

(a) is presented to the Secretary of State after the time appointed by this rule for entering appearances, and

(b) sets out the reasons why the notice has been presented after that time

shall be deemed to include an application under rule 15 for an extension of the time so appointed on the grounds disclosed by those reasons.

(4) Where a chairman grants an application under rule 15 for an extension of time so appointed (including an application deemed to be made by virtue of paragraph (3)) he shall determine whether, having regard to the grounds of his application, it would have been reasonably practicable for the respondent to present his notice of appearance within the time so appointed. If the chairman determines that it would have been so practicable, the respondent shall be treated as having acted unreasonably for the purposes of rule 12(1) and the chairman shall make an order under that rule if he considers it appropriate."

Rule 12(1) relates to Costs.

(b) Rule 9(3) provides:

"9(3) If a party fails to attend or be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."

I pause to comment that this sub rule refers to a "party" and that it therefore has to be read with a qualification in rule 3(2).

(c) Rule 13(1) is a general rule relating to the procedure of an Employment Tribunal which provides:

"13(1) Subject to the provisions of these rules, a tribunal may regulate its own procedure."

(d) Rule 11 is the rule relating to Review and it is in the following terms:

"11(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that –

(a) the decision was wrongly made as a result of an error on the part of the tribunal staff;

(b) a party did not receive notice of the proceedings leading to the decision;

(c) the decision was made in the absence of a party;

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or

(e) the interests of justice require such a review.

(2) A tribunal may not review a decision of its own motion unless it is the tribunal which issued the decision.

…

(4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full.

…

"15(1) A chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired.

(2) An application under paragraph (1) shall be made by presenting to the Secretary a notice of application, which shall state the title of the proceedings and shall set out the grounds of the application.

(3) The Secretary shall give notice to each of the parties of any extension of time granted under this rule."

14. Turning to the Notice of Appeal the grounds included therein are:

"The decision to refuse to admit the Respondent representative, Mr Rizan Chopdaat to the hearing to apply under rule 15 of the Employment Tribunals Rules of Procedure when he arrived at 11:30 am was wrong in law and perverse and in Breach of Article 6 of the Convention of Human Rights pursuant to the Human Rights Act 1998."

15. Before us it was argued that the receptionist or whoever answered Mr Chopdaat's telephone call was to be treated as part of the Employment Tribunal and that the stance of that receptionist was the refusal that was wrong. We confess that we have some difficulty as to that.
16. However, it seems to us that issues that are arguable do arise in respect of this appeal.
17. First, the issue arises as to whether or not the Employment Tribunal erred in law in not adjourning the hearing, either at its commencement or later, to allow a representative of Rhodi Manufacturing to make an application to put in a Notice of Appearance and thus to obtain an extension of time under Rule 15.
18. It seems to us that the need to consider that possibility arose initially and then re-arose when the nature of the Applicant's case was made known to the Employment Tribunal. As we have said, very serious allegations were made by the Applicant upon which the Employment Tribunal made findings which in particular related to the damages awarded.
19. It seems to us that there is a reasonably arguable point that, as the Employment Tribunal knew that attempts were being made by a representative of Rhodi Manufacturing to attend, that they should have considered adjourning when the nature of those allegations became clear. It follows, in our view, that there is a reasonably arguable case as to whether or not the Employment Tribunal erred in law in refusing and/or failing to adjourn or to properly consider the issue of adjournment.
20. If it were to be argued, having regard to the rules that I have read out, that there was in fact no power for the Employment Tribunal to adjourn given the content of Rule 3, it seems to us there would then be an argument that could be reasonably advanced under Article 6 that those rules are contrary to Article 6.
21. We do not urge anybody to take the point that the Employment Tribunal did not have power to adjourn either under the general power of Rule 13 or alternatively to allow an application to be made under Rule 15 pursuant to Rule 9(3). However, we record that if that is a point taken it seems to us that a point that is reasonably arguable arises under Article 6.
22. Further, it seems to us that it is reasonably arguable that the Chairman of the Employment Tribunal erred in law in her consideration of the application for review, either (a) in considering whether or not the Employment Tribunal should review of their own motion, or (b) in not giving sufficient weight to the divergence between the facts alleged in relation to attendance and the position as recorded in the Extended Reasons and therefore understood by the Employment Tribunal.
23. In this context we accept that having regard to the language of the Rules there is force in the view expressed on jurisdiction by the Chairman in her refusal of the review. However, if that view is correct we are again of the opinion that it gives rise to an argument under Article 6 that the rules offend against that Article in precluding a Respondent who has not put in a Notice of Appearance from obtaining a hearing firstly of an application to extend time to put in that Notice of Appearance and if that is successful in dealing with the case. By way of an example we refer to a case in which a Respondent in circumstances similar to this one had notified a Employment Tribunal that he or she was proposing to attend and had met with a serious accident on the way to the Employment Tribunal and therefore could not be present to make the application under Rule 15 and who, like Rhodi Manufacturing, had not taken the opportunity of putting in a Notice of Appearance which the Employment Tribunal would have to consider. It seems to us that it is certainly arguable that it would a strange result if the interests of justice in those circumstances would not require a review.
24. In our judgment the points that I have identified are points that are reasonably arguable.
25. We will give leave to the Appellant (Rhodi Manufacturing) to amend the Notice of Appeal insofar as it is necessary to add those points. There may be arguments that some of them are already covered by the grounds expressed in the Notice of Appeal and I would add, in this context, that the point originally made that there was a participation by a member of the Tribunal staff in the circumstances which led to Mr Chopdaat not being present might be relevant in considering the issue on review. There are cases concerned with the relevance of the participation of the Employment Tribunal when a review is sought in the interests of justice.
26. If the Appellant (Rhodi Manufacturing) wishes to pursue the argument that the relevant member of staff was a party to a decision of the Employment Tribunal or that that person's indication was a refusal by the Employment Tribunal we indicate that we do not preclude them from so doing, although we have expressed a preliminary view about that point.
27. We will also give permission to the Appellant (Rhodi Manufacturing) to appeal against the decision refusing a review. That appeal would now be out of time.
28. So far as the permissions that we have given, both as to amending the existing Notice of Appeal and issuing a new one in respect of the decision to review, we give express leave to the Respondent to the appeal (Mrs Bhayat) to apply to vary or discharge those orders. We do that because she is not present and certainly as to the appeal against the review decision it is out of time. Also the addition of some of the grounds to the appeal against the substantive decision would also arguably be out of time.
29. We would not encourage the Respondent to the appeal (Mrs Bhayat) to make any such challenge to those permissions by way of a preliminary hearing and if she, through her advisers, wishes to make that challenge she can do so at the hearing of the appeals. But if she is going to make such a challenge then she should make sure that the Appellant company (Rhodi Manufacturing) is notified that that is what she is going to do a reasonable time before the appeals come on.
30. Given the exceptional circumstances of this case, at the beginning of the hearing I referred Counsel for Rhodi Manufacturing to an affidavit we have received from Mrs Bhayat together with a letter from the Racial Equality Council. These were in response to evidence put in on behalf of Rhodi Manufacturing by two of its Directors. That evidence goes in large measure to the merits of the claim. In short, the Directors say that due to problems in their T-shirt factory Mrs Bhayat and other employees were given notices of redundancy on 17 December 1999 and that Rhodi Manufacturing did not receive notice that Mrs Bhayat was pregnant until after that date. They exhibit a Maternity Certificate which is dated (I think) 19 January 2000.
31. Mrs Bhayat in her affidavit raises the point that of the letters of notification exhibited to those affidavits, the letter to her is the only one that contains an address. Apart from that those letters are in standard form and I read the one which, on its face, is addressed to the Applicant. It says:

"Dear Miriam

As per our letter given on 19 November 1999 it is with regret that we are unable to offer you work after the Christmas holidays.

We would like to take this opportunity to thank you for all the hard work and loyalty which you have given to the company and wish you every success for the future."

Letters of 19 November are not included in the exhibits.

32. Mrs Bhayat asserts that those letters were never sent and that they have been, to use her word, "manufactured". Her affidavit does not deal directly with the Maternity Certificate. The affidavits put in on behalf of Rhodi Manufacturing contain the following statement:

"All those employed within the shirt factory were made redundant and their contractual entitlements duly paid."

33. It is not stated what those contractual entitlements were or whether there was a redundancy entitlement in all the cases but it does make a clear assertion that payments were made. Given the seriousness of the allegations made against Rhodi Manufacturing in this case and the view of the Employment Tribunal as to the credibility of Mrs Bhayat, it seems to us at least unfortunate that the affidavits the directors of Rhodi Manufacturing put in did not contain much further detail as to the case that Rhodi Manufacturing wished to advance. It seems to us that those affidavits should have included relevant records, particularly in respect of Mrs Bhayat but also in respect of other employees, showing the payment they allege were made. The lack of confirmatory information is compounded by the fact that the Racial Equality Council wrote to this Tribunal on 27 November 2000 enclosing a pay slip which, on its face, relates to Mrs Bhayat and is dated 17 November 2000 which on all accounts is a date after she ceased to be employed. That letter also enclosed the affidavit of Mrs Bhayat and contained a paragraph in the following terms:

"We should also like to advise you that the appellants have continued to produce pay slips in Mrs Bhayat's name, indicating that she is still employed by them. We request information as to why the appellant are in fact doing so when it is quite clear that Mrs Bhayat ceased to be employed by the appellant company when he dismissed her on 11 February 2000 and no payments have been made to or received by Mrs Bhayat. I have enclosed the pay slip for your attention."

34. In those circumstances it seems to us that we should direct that Rhodi Manufacturing should put in further evidence which exhibits the relevant company records to show the termination of the employment of the employees employed at the shirt factory and the payments that were made to them. We will direct that that evidence is to be put in in the next 21 days. We will give liberty to Mrs Bhayat to reply to that evidence.
35. At the outset of this hearing I indicated (and it was accepted by Counsel for Rhodi Manufacturing) that there were serious allegations made in this case and issues might be reported either by this Tribunal (or an Employment Tribunal if the matter was remitted to them) to relevant public authorities, including the Police, the Crown Prosecution Service and the Revenue.
36. We are troubled by the seriousness of the allegations that were raised in this case and that is one of the reasons why I have given the additional directions.
37. Finally I mention that I expressly raised with Counsel for Rhodi Manufacturing whether or not the Appellant company was seeking to argue that the Employment Tribunal erred in law in their approach to the assessment of damages which they describe as damages for injury to feelings and aggravated damages and it was indicated to me by Counsel that it was not.
38. We will give this case (i) a Category A/B because of the nature of the allegations that underlie it and the possible Article 6 points, and (ii) a time estimate of a day.