United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE HOOPER:

1. This is an ex-parte preliminary hearing. The court received a communication by fax from the appellant indicating that she will not be attending.
2. There are five Notices of Appeal before us all connected with a quite simple matter.
3. On 7 September 2000, the Employment Tribunal received an IT1 from Mrs Daphne Mary Young, the respondent, claiming unpaid wages. She had worked for one week for Mrs Patricia Watts, the appellant, who runs a nursing home known as Ten Gables, in Bridlington Road, Driffield, East Yorkshire. Mrs Young wrote in box 11:-

"I worked for just one week for Mrs Watts, I left it the week after I left then rang when it was convenient to pick up my week's [wages] and was told that I was not getting any wages. She told me that I hadn't worked a week's notice so I wasn't entitled to any wages so I went to the Citizens Advice and was told to get in touch with Rights at Work, so I did that. They told me to write to Mrs Watts and ask for my wages and I asked her to let me know if she was going to pay me or could she write back and let me know why not. I wrote the letter on 17.8.00 and have yet not had a reply from her. I have a copy of the letter I wrote and also a Recorded Delivery receipt when I sent the letter. I am sorry that I have had to write to you but I think it only fair that I should have the week's wages that I worked hard for.

PS The reason I left was the work was too much for me. I had never done care work before "

4. The appellant's IT3 was received by the Tribunal on 26 September. She wrote as follows:-

"I refute the claims of the applicant. I wish to enter a Notice of Appearance. All particulars of the grounds on which I intend to resist the application are reserved at this time. I request that the case is listed for hearing before a Chairman and two other lay members."

5. On 5 October, (see page 2) the Employment Tribunal wrote to a Mr Wilson who had been specified on the IT3 as the appellant's representative. The letter thanked Mr Wilson for the Notice of Appearance and then informed Mr Wilson that the matter had been referred to a Chairman of the Tribunal who had directed as follows:-

"The purported Notice of Appearance is defective as it does not state the grounds of resistance. Unless the grounds of resistance are supplied within 7 days you will be regarded as not having entered a Notice of Appearance.

If you are unclear or uncertain as to any of the above matters, please contact me on the direct telephone number below. Please bear in mind however that members of staff are not allowed to give advice about the conduct of your case."

6. On 11 October, Mr Wilson, on paper headed with the address of the nursing home, wrote a letter to the Employment Tribunal. Mr Wilson wrote that Mrs Watts was of the opinion that the Notice of Appearance was valid. In the fourth paragraph of the letter, Mr Wilson said that Mrs Watts refuted the claims of the applicant and "has entered a Notice of Appearance in the prescribed form." She contends that it is not a requirement that the grounds of resistance have to be stated when entering a Notice of Appearance. She said that she wished to be present. Mr Wilson wrote that he was requested by Mrs Watts to ask that the matter be reconsidered by a Chairman with a view to reversing the earlier decision. It went on to say that Mrs Watts in the meantime was lodging an appeal to this Tribunal with regard to the direction given on 5 October. It will be noted that in that letter there were no further details of the grounds for opposing the claim made by Mrs Young.
7. That letter was sent by fax. On the same day, Mrs Watts herself sent a letter to the Tribunal. The letter (see page 17) referred to the Tribunal letter of 5 October and then set out the particulars of the ground on which she intended to resist the application. It is not necessary for us to set out those grounds because they were subsequently to be found sufficient for the purposes of the Rules.
8. On 13 October, the Employment Tribunal replied by letter, not to Mrs Watts's letter of 11 October but to Mr Wilson's letter of 11 October. That reply will be found at page 6. In that reply, the appellant was informed by Mr Wilson that the previous direction stood and that Mrs Watts should comply immediately or the matter would proceed as if no appearance had been entered. It is unfortunate that the letter written by Mrs Watts of 11 October containing the particulars was not apparently drawn to the attention of the Chairman when he made his direction on 13 October. It may be that there was confusion, given that two separate people, Mrs Watts and her representative were both writing on the same day about the same matter, albeit in a contradictory manner.
9. On 19 October, the Tribunal informed Mr Wilson, following a conversation with him on the day before, that the file had been referred back to the Chairman of the Tribunal who had decided that his direction of 13 October still stood. It seems clear that the letter (see page 8) written by Mrs Watts enclosing the particulars had not yet found its way into the file which was being seen by the Chairman on 19 October. On 20 October, Mr Wilson wrote a letter (see page 18) which was faxed to the Employment Tribunal. In that letter he said that Mrs Watts remains of the view "that the comments contained in my letter of 11 October 2000 and her faxed letter of the same date containing additional grounds of resistance to this application, do constitute a valid Notice of Appearance." She then asked that the whole file be forwarded to the Regional Chairman for a direction as to whether a valid Notice of Appearance has been entered in this instance.
10. We turn to a letter of 27 October (see page 12) from the Regional Chairman. By now the Regional Chairman had the two letters of 11 October. Acting on Mrs Watts's letter of 11 October, he extended the time for presenting the Notice of Appearance and treated the letter as an application to amend the Notice of Appearance. In simple terms he had "validated" the grounds relied upon by Mrs Watts in her letter of 11 October.
11. Mrs Watts maintains that she did not receive that letter until 13 November. In a letter written by Mr Wilson on that day, Mr Wilson told the Employment Tribunal that the 27 October letter had not reached the Ten Gables Nursing Home until 7.45am on Monday, 13 November. Unfortunately, by that time, the case had been heard on 8 November in the absence of Mrs Watts (see page 19). In her absence the Tribunal had upheld Mrs Young's claim and made an award of unpaid wages in the sum of £126 gross. This case is about that sum.
12. Having read the papers, we caused enquiries to be made of the Employment Tribunal in Leeds. Mrs Watts, not being here today, has not seen this document but on the back of the letter of 27 October is a handwritten note "cc ACAS and parties 27-10.". What is being said there, is that the Tribunal did send the letter of 27 October. One would therefore have expected it in the normal course of events to have been delivered well before the hearing of 8 November. It is not clear whether the appellant was given notice of the hearing but that would be of little importance because until she received the letter of 27 October she would not have thought that she had any way of defending the claim. That point is made clear in the letter which can be found at page 19.
13. At this stage, we only have to decide whether there is an arguable ground, given what the appellant is saying, and notwithstanding what is to be found on the back of the letter of 27 October as kept on the file in the Leeds office. There is an issue as to whether or not the appellant received the important letter of 27 October. If she did not receive it then it is strongly arguable that the hearing would not have been a fair hearing because she would have understood that she was not permitted to put her side of the case not having entered a proper Notice of Appearance.
14. Most of the grounds of appeal relate to an attack on the decisions made, for example, on 5 October to reject the Notice of Appearance and the subsequent decisions made to confirm that the decisions apparently made in ignorance of her letter of 11 October. We see no merit in those grounds and they fail. We have no doubt that the Tribunal Chairman was right to reject the purported Notice of Appearance as defective
15. We take the view that it is arguable that the appellant did not have a fair hearing if she did not receive the letter of 27 October before the hearing. We direct that within 28 days, the appellant is to serve upon the Employment Tribunal and upon Mrs Young, an affidavit setting out the circumstances in which she received the letter of 27 October and stating, if such be the case, that she did not receive it until 13 November.
16. We give leave, therefore, for this case to go to a full hearing.