United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Robert Taylor (Solicitor) MHL Support Plc 4 Fellgate Court Froghall Street Newcastle Under Lyme Staffordshire ST5 2UA
For the first Respondent Second Respondent debarred from proceedings	Ms Claire Darwin (of Counsel) Instructed by: Free Representation Unit 12 King's Bench Walk Temple London EC4Y 7EL


 


SUMMARY

Practice and Procedure – Review

A asserted he had never received notice of the hearing before the ET. ET refused review. Held: Justified. On material before ET the documents were sent to the home address which he had given in another context and at which his representative told the ET he had resided for 12 years. ET entitled to take the view the application for a review was hopeless. [NB: His fellow Respondent was aware of the proceedings and the proposed appeal and he never asserted non-service on him].


 


HIS HONOUR JUDGE REID QC

1. This is an appeal from a decision of the London (North) Employment Tribunal, that decision being contained in two letters dated respectively of 11 and 25 November 2005, by which the Chairman Mr Postle refused applications for a review of the decision of the Tribunal on 6 June 2005. By that decision the Chairman, sitting alone, in the absence of the Appellant or of the Second Respondent to the application and indeed Second Respondent to this appeal, Mr Hussein, had held that the Claimant, Ms Croxford, had been automatically unfairly dismissed under section 98A of the Employment Rights Act, automatically unfairly dismissed by reason of pregnancy under section 99 of the Act, unfairly dismissed under section 98 of the Act, and discriminated against under the Sex Discrimination Act on the grounds of her pregnancy.
2. The Tribunal also declared that the Respondents had made unlawful deductions of wages, had made unlawful deduction of wages in failing to pay holiday pay, had failed to give written reasons following a request for dismissal under section 92(4) of the Employment Rights Act and failed to provide a written statement to the main terms and conditions of employment contrary to section 1 of the Employment Rights Act. It further held the Claimant's had failed to provide itemised pay slips. As a result of that the Tribunal made a substantial number of financial awards totalling altogether some in excess of £20,000. On receipt of that decision, considerably later than it was given, Mr Cattlin, the Appellant, sought to appeal. The Second Respondent, Mr Hussein, has not sought to appeal though it does appear that he is aware of the decision and of the appeal process being undertaken.
3. Mrs Croxford had been employed initially by a company called Success First Ltd of which Mr Hussein was a director and Mr Cattlin was the Company Secretary. Following the dissolution of that company she was employed by, on the findings of the Tribunal, both Mr Cattlin and Mr Hussein. I have been told by the Solicitor representing Mr Cattlin that Mr Cattlin and Mr Hussein were not in fact in partnership and that the various businesses carried on by First Success Ltd were split up so that the accountancy services division, if I can call it that, was following the dissolution carried on by Mr Cattlin alone.
4. Mrs Croxford was dismissed from her employment on 3 December and on 17 February the Tribunal received her ET1. In the usual way that ET1 was sent to the Respondents. It was sent both to the given home addresses of Mr Cattlin and Mr Hussein and also to the business premises at which first of all the company and thereafter Mr Cattlin, trading as Success First, had carried on business. The home addresses given had been obtained from Companies House, having been supplied as part of the necessary information when or after Mr Cattlin and Mr Hussein had taken over the company which had been a shelf company. The respective addresses must have been supplied by the Secretary, that is to say Mr Cattlin, or at least under his direction and he gave as his address an address at 33 Clive Close, Potters Bar. Mr Hussein gave as his address a flat at Windmore Hall, Potters Bar. That information was filed at Companies House on 7 February 2004. The address for the company was the address given on the company's note paper, Ability House, 121 Brooker Road, Waltham Abbey and was the office building at which Mrs Croxford was employed. Neither Mr Cattlin nor Mr Hussein returned an ET3 and neither of them took any part in the hearing before the Employment Tribunal which had the result that I have already indicated.
5. The next that was heard by the Tribunal was that a letter was sent to the Employment Tribunal by MHL Support PLC dated 11 November, that letter being, it appears, sent by fax and I should read it almost in its entirety:-

"We refer to the earlier judgment dated 6 June 2005 in this case. We act for the First Respondent as to say Mr Cattlin in the case and we now right to request a review of the 6 June judgment for the following reasons.

1) Success First Ltd originally occupied premises at Ability House, 121 Brooker Road, Waltham Abbey this was the company that first employed the Claimant and it was to this address that correspondence concerning the Claimant's Tribunal claim was sent.

2) However the company Success First Ltd was actually dissolved at Companies House in June 2004 and the company of premises were later vacated on or before 31 December 2004. The company's lease for those premises was terminated in February 2005.

3) The First Respondent tells us that he received no communication whatsoever during the progress of his Tribunal case. More recently the only communication that the First Respondent has received is a copy of the June 6 judgment when this was forwarded to him presumably when new occupiers moved into Ability House care of another address. The First Respondent then forwarded a copy of the judgment to us and we have had to make further internal enquiries before writing this letter to the Tribunal. In particular since our receipt of a copy of a judgment from First Respondent we need to speak to MHL Sales Consultant who originally concluded that Employment Law Service Contract with the First Respondent and that sales consultant only returned from annual holiday on Monday 7 November 2005. That was the first time we were able to confirm our instructions for First Respondent. We then needed to agree this letter. Those are the reasons we have not been able to right to before now.

4) Further to the above, the First Respondent tells us that after the dissolution of Success First Ltd although he personally traded with that name some months afterwards and in that capacity employed the Claimant. Also at that time the business itself was failing and the claimant was fully consulted about the likelihood of her future redundancy. The Claimant was later made redundant in accordance with this consultation and at no stage did the Claimant's pregnancy have anything to do with the redundancy itself. Ultimately the Success First business completely ceased and no employees were maintained in that business.

6) The First Respondent tells us the Claimant was fully aware of the circumstances of the failing Success First business and were appending redundancy throughout this process. If this is the case it perhaps begs the question why the Claimant did not mention any of these things to the Tribunal during the Tribunal hearing. Unlike the evidence which the Claimant appears to have given to the Tribunal meaning prejudgment finding automatic unfair dismissal and sex discrimination, the First Respondent maintains that the dismissal was an entirely lawful redundancy and the circumstances were fairly in business in the absence of future work. Certainly above circumstances it was of no sight or knowledge of these proceedings the First Respondent was being denied the opportunity either to submit an ET3 notice of appearance or to put his case Tribunal hearing. This would clearly seem unfair and prejudice to the Respondent. As above we therefore request a review of the 6 June judgment under Rule 34(1)(b) of the Employment Tribunal's Constitutional Rules Procedure Regulations 2004. The grounds in which we ask for a review are under 34(3)(b), (c) and (e). At the same time given the above circumstances and the delay of the judgment meeting the First Respondent and then us we also ask for an extension of time under rule 35(1) Police Review Application. Depending on the Tribunal's decision in correction of this review application we will of course then submit a full ET3 notice of appearance on behalf of the First Respondent to the Tribunal. We will await hearing for you."

6. They heard from the Tribunal by letter dated 18 November which acknowledged receipt of the letter of 11 November and continued:-

"This has been referred to Chairman of the Tribunal, Mr Postle, who has directed that I write the following. The application for review is refused. Both Respondents have been sent correspondence at home addresses, therefore, they will have been very aware of the proceedings. Further the application for review is nearly 5 months out of time."

That provoked a further letter of 25 November in these terms:-

"I refer to one my earlier letter of 11 November give the reasons for and requesting a review of the Tribunal's earlier 6 June 2005 judgment to this case. Two of the Tribunal's replied 18 November refusing the application for review on the Tribunal Chairman's stated terms. Both Respondents have been sent correspondence at home addresses, therefore they will have been fully aware of proceedings. Further the application for review is nearly 5 months out of time.

However with the utmost respect:

1) with regard to the Chairman's first comment that both Respondents were sent correspondence to home addresses, I would be very interested to learn that the Tribunal had any confirmation that these addresses were indeed the home addresses of the First and Second Respondents, since neither of the Respondents took any part in the proceedings.

In fact, the First Respondent was adamant that he never received any correspondence whatever concerning this case at his home address (or anywhere else until recently as set out in my earlier letter of 11 November) and he says that he has been at that address for the last 12 years. In relation to Mr Hussein, the Second Respondents presumed home address 3 Windmore Hall, Potters Bar, Herts EN6 3BH (which is also the address to which the Tribunal sent its last letter). I am told this is an address rented out by Mr Hussein with rent paid by direct debit without any other regular contact between Mr Hussein and the tenants.

If these circumstances are right then there is very clear unfairness and injustice to both Respondents who say they have received no notice of these proceedings and were therefore denied any chance to defend or represent themselves. I cannot see this meets the statutory overriding objective in this case.

2) With regard to the Chairman's second comment, that the request for a review was made only recently, nearly 5 months out of time, the reasons for this were clearly set out in my earlier letter of 11 November 2005. With respect, if the First Respondent only became aware of these proceedings when his earlier relocated business premises were then re-occupied with post being forwarded by the landlord or the new occupier, that event is clearly totally separate and independent from the date on which the judgment in this case was made. The First Respondent can only make representations for a review once he is aware of the judgment and not before.

With this further information, and for the reasons here and in my 11 November letter, may I please request the Tribunal's decision contained in its 18 November letter to be reconsidered and may I please re-request for a review of the judgment in this case.

I would await hearing from you."

The response to that was dated 7 December in these terms:-

"Thank you for your letter of 25 November of the contents of which have been noted. This has been referred to Chairman of the Tribunal's, Mr Postle, who has directed that I write the following

Your application for review is refused. The position has not changed since the decision of 18 November. The letter from 25 November has not persuaded the Tribunal there is any merit in the application for review. Our exchange of correspondence has been confident as indicated below and copies were then sent to Miss Darwin the FRU representative for Mrs Croxford and Mr Hussein."

That led to the Notice of Appeal.

7. The Notice of Appeal sets out at some length background matters and indicates among other things that the judgment had come to the Appellant in October and then goes on, having set out the history, to identify the grounds of the appeal as follows.

"…it is submitted that the Tribunal's decision to refuse review in this case is therefore perverse in that

(i) Such non-notification of the proceedings is one of the stated and allowed reasons for a review.

(ii) The Tribunal's refusal to allow a review leads to a totally unjust and unconscionable result in that, parties who receive no notice of proceedings (and who additionally say that they have a defence to the proceedings) have been denied any right to put their case or be heard before a judgment has been made.

(iii) The statutory overriding objective at Regulation 10 Employment Tribunals (Constitution etc) Regulations 2001 has not been met in any material or respect.

4) Additionally, it is submitted that it is fully in the interest of justice to allow a Review."

In fact when the Appellant's skeleton argument for this appeal was put in, the substantive point made was that the Tribunal had failed to have regard to the decision in Hancock v Middleton [1982] ICR 416 and that on receipt of an application for review based on grounds of non-receipt and non-attendance, the matter should have been referred to a fully constituted Tribunal, that is to say to a Chairman and 2 lay members and that evidence should have been heard before a decision was reached.

8. The Appellant had by this time put in an affidavit in which he said that he was resident from December 2004 at 41 Buckingham Avenue, London N20 and was there resident at the time that proceedings were served and that the Clive Close address was "based on a Companies House report on the Appellant's former company that had been sold on 1 June 2004". It said that could not be good evidence of the Appellant's current address at the time when claim was made on 16 February. The affidavit also dealt with the circumstances in which the Appellant ceased trading at Ability House and it was submitted that there was evidence that the Appellant was not resident at the address for purpose of service and that the evidence was significant in permitting the Appellant the opportunity of rebutting the deemed service of notice provisions contained in the regulations at rule 61.
9. The first point that is taken against the Appellant is that the Notice of Appeal makes no reference at all to the Hancock v Middleton point but is a pure perversity appeal and it is said that no application having being made to amend the Notice of Appeal, I should not permit that grant to be raised at this late stage. In support of that submission I was referred to Khudados v Leggate [2005] IRLR 540 and in particular to paragraph 86 of the decision which sets out matters to be taken into account, though not an exhaustive list, in determining whether or not an amendment should be permitted. I cannot see any point in formally demanding an amendment of a Notice of Appeal at this stage so I will treat the Appellant as having made an application to amend to raise the Hancock point.
10. The six points which are set out in paragraph 86 of the Khudados judgment may for present purposes be summarised as follows. First, that the rules are intended to be complied with. Second, that the Employment Appeal Tribunal was entitled to a proper explanation of any delay or failure to comply with the Practice Direction. Third, that delay caused by the amendment could count against an amendment being allowed. Fourth, prejudice to the other side will count against an amendment being allowed. Fifth, that if necessary the merits of the amendment will be considered. And sixth that regard must be had to the public interest in ensuring that EAT business is conducted expeditiously and its resources are used efficiently. So far as that is concerned, clearly there has been a breach of the rules. Even now there is no formal application for permission to amend; secondly, there having being no application, there has been no explanation as why the application is made late. Thirdly, the proposed amendment would not cause any delay. Fourthly, the point is a point of pure law and has been well known to the Respondent since receipt of the Appellant's skeleton argument dated 31 October 2006 and indeed Ms Darwin who has appeared on behalf of the Appellant has not suggested that there has been any prejudice to her client. Fifthly, so far as merits are concerned, this is not an obviously hopeless point, and, sixthly I have regard to the public interest in assuring that the business of the EAT is conducted expeditiously.
11. The application for an amendment does not affect any other business of the EAT. We are here today anyway, and the other case on my list having pulled out yesterday evening there is nothing else that is being held up by this appeal. I take the view that having regard to the overriding interests of justice, I should overlook the delay, and the lack of any explanation as to the delay and allow this point to be taken. That said, it does not seem to me that there is any substance in the point. The decision to which reference is made was a decision made under the 1980 Regulations, and in particular that decision dealt with circumstances where a decision had been given by a Tribunal, an application for review on the basis of non-receipt of the proceedings was then made but the decision not to allow the review was taken by a Chairman acting alone.
12. The rules at that time, then rule 10, included this provision.

"An application of the purpose of paragraph 1 of this rule [that is an application for review], may be refused by the President or by the Chairman of the Tribunal which decided the case or by Regional Chairman if, in his opinion, it has no reasonable prospects of success. If such an application is not refused under sub-paragraph 3 of this rule it shall be heard by the Tribunal which decided the case or a) where it is not practicable for it to be heard by that Tribunal, or b) where the decision is made by Chairman acting alone under rule 12(4) by a Tribunal appointed either by the President or a Regional Chairman, and if it is granted the Tribunal shall either vary the decision or revoke the decision and order a rehearing."

The Tribunal having referred to those parts of the regulations said this:-

"In the present case Mr Hand of Counsel appeared for the Appellant, submits that it cannot be right for Chairman in circumstances where the applicant for review is saying that he did not receive notice of the hearing and the decision was made in his absence to exercise his powers under rule 10(3) and come to the conclusion the application has no reasonable prospects of success. It seems to us that Mr Hand is right about this."

And the Tribunal then went on to hold that in those circumstances the matter should go back to be dealt with by a Tribunal to be appointed, that is to say a Tribunal comprising a Chairman and 2 lay members.

13. By contrast the position on a review now under the 2004 regulations is as follows. By 35(3) the application to have a decision reviewed shall be considered, without the need to hold a hearing, by the Chairman of the Tribunal which made the decision or (if that is not practicable) by a) the Regional Chairman or the Vice President b) any Chairman nominated by a Regional Chairman or the Vice President or c) the President. That person shall refuse the application if he considers there are no grounds for the decision to be reviewed under rule 34(3), or if there was no reasonable prospect of the decision being varied or revoked. If the application is not refused at that preliminary stage then regulation 36 comes in which provides by regulation 36(1):-

"When a party has applied for a review and the application has not been refused after the preliminary consideration above the decision shall be reviewed by the Chairman or Tribunal who made the original decision."

If that is not practical, a different Chairman or Tribunal, as the case may be, shall be appointed by a Regional Chairman, Vice President or the President. It will be observed, perhaps there is a distinction in that none of the rules require the review hearing to be held by the body which originally determined the case. In this instance the original hearing was by a Chairman alone, the review hearing should therefore be by a Chairman alone. There is no equivalent to the provision under the 1980 rule whereby when the decision has been made by Chairman acting alone under rule 12(4) (which is what happened in that case) the reviewing Tribunal has to be a Tribunal comprising both Chairman and lay members. It follows that any review that should have taken place is a review which should have been directed by the Chairman by himself to take place before the Chairman by himself. Of course such a review would be on an inter partes hearing with, if and so far as might be necessary, the calling of evidence.

14. The question then is whether the circumstances are such that the Chairman was wrong in law or perverse in determining the matter at a preliminary hearing or as a preliminary decision without a hearing rather than referring the matter to himself to be considered at an inter partes hearing. Here again reliance was place on the passage which I have already read in the Hancock case, the Appellant saying that the Chairman should not have acted as he did. That, it seems to me, is seeking to elevate a decision on fact (albeit it may be on facts which arise fairly regularly) into a principle of law. There is no rule of law which requires that every time someone applying for a review asserts that they have not received notice of the hearing that the reviewing Chairman must determine that there is a case of sufficient weight to get over the hurdle in section 35(3) and require a full review under regulation 36. Indeed Mr Taylor, who has properly said everything that can be said on behalf of the Appellant, conceded that there would be cases where the application was so manifestly hopeless that even where the application asserted that there had been non-service a Chairman could decide that the application had no reasonable prospect of success.
15. What then was the position in this particular case? Here, first of all, I should point out that it is clear from the report in the Hancock case that there was a good deal of material before the EAT (and it appears also before the Employment Tribunal) because the Chairman refers both to the application letter and all the other circumstances. The position in this case however is rather different because what I have to look at is the material that the Chairman had when he made his two decisions. The two decisions, it will be recollected, were on the basis that the notices, the documents sent from the Tribunal, had been sent to the home addresses. But what is said in the affidavits put in for the Employment Appeal Tribunal and is repeated to me today, is that the home address of Mr Cattlin was not the supposed home address identified on the ET1 and to which correspondence was sent. Nowhere in the two letters sent out by MHL Support, first of all asking for a review and then asking for a re-review, is there any suggestion that there was any other home address. So far as the Tribunal was concerned, what it had before it from the original hearing was the ET1 showing the home address and showing the company's register with information supplied by Mr Cattlin as secretary of that company showing his address as the address to which the Tribunal had sent correspondence and the ET1.
16. Furthermore there was the assertion from MHL "he says he has been at that address for the last 12 years". The evidentiary position so far as the Chairman was concerned therefore was that he had before him an address which had been given in February 2004 by the Appellant (the Respondent before the Employment Tribunal) as his home address. There had been no updating of that address by any further return before the company was struck off on 1 June 2004. The Chairman was given no alternative address by the representative applying for a review on behalf of Mr Cattlin and he had a positive assertion by that representative that Mr Cattlin had been at his address for 12 years. It was argued that on that state of affairs the Chairman should have observed that there was something odd and should have made further enquiries or put the matter through for a full hearing. I regret that I am entirely unable to see that. The facts as presented to the Chairman were presented in an extremely short compass and, as is apparent from the Chairman's very short reasons, he correctly said that the correspondence had been sent to the home addresses and noted that the Respondents would therefore have been fully aware of the proceedings.
17. Now, if this matter did have to go back, there would be no doubt considerable scope for argument on the part of Mrs Croxford that it is perfectly obvious that Mr Cattlin knew full well about these proceedings because that address he now says was his brother's address and it is clear that a substantial amount of correspondence was sent there, a good deal of which it appears from the material before me may well have been signed for, but I am not concerned with the question of whether, on a review hearing, Mr Cattlin would have been believed or disbelieved in his assertion that he had not received this material and that the address that he gave was not his home address. The position that I have to look at is the position before the Chairman of Tribunal and the position before the Chairman of Tribunal seems to me to be perfectly clear, namely that there was an un-contradicted home address which had been the home address at all material times and to which the various documents had been sent.
18. In those circumstances, and I here adopt the submission made by Ms Darwin, on behalf of Ms Croxford, in relation to regulation 61. I accept that under regulation 61(4)(h)(i) the "address specified in the claim or response" is to be construed disjunctively so that service on a Respondent will not be valid simply because it has been sent to the address specified by the Claimant in the originating application. But it does not follow that service of such an address cannot be valid. Here there was evidence before the Chairman which he was entitled to regard as cogent that the documents had been sent to what was indeed Mr Cattlin's home address.
19. Even if regulation 61(4)(h)(ii) were engaged I adopt the reasoning in Zietsman trading as Berkshire Orthodontics v Stubbington [2002] ICR at 249. Regulation 61(4)(ii) applies if no address has been specified or if notice sent to such an address has been returned. Then the documents may be sent to any other known address or place of business in the United Kingdom or if the party is a body corporate, the body's registered or principal office in the United Kingdom or in any case such address or place outside the United Kingdom as the President, Vice President or Regional Chairman may allow is appropriate. In this case the documents were posted to Ability House which was the last known business address. This is sufficient for the purposes of (ii) for the reasons given in Zietsman, albeit that is a decision under the previous regulations. It seems to me therefore that in the circumstances of this case the terms of regulation 61 have been complied with.
20. Going on from there, I then look to the Interpretation Act at section 7 but I need not, I think, read that in full and the consideration of that section provided by this Tribunal in T and D Transport Portsmouth Ltd v Limburn [1987] ICR 696, a Tribunal chaired by Mr Justice Popplewell. I take the view that in the light of that decision it is clear there was a presumption of proper service.
21. In the light of the extremely limited evidence which those then representing the Appellant saw fit to put before the Tribunal at the stage when they asked for a review and for a re-review the Chairman was perfectly entitled to say that there was no reasonable chance whatsoever of an application for review being successful and that he was perfectly entitled to take the view that he did that the matter should be struck out rather than being subjected to a further hearing before him at which it would appear if anything the Appellant's case would get worse rather than better. I take the view that in those circumstances the Appellant has failed to make out any case for saying that the decision of the Employment Tribunal Chairman was perverse or that it was wrong in law. It would follow that the appeal should be dismissed.
22. I should add to that, first of all, that it is clear in particular from the second of the letters asking for a review that Mr Hussein is aware of the judgment and has not sought to assert he was not served or to appeal it in any manner. Secondly, it was accepted by Mr Cattlin after a certain amount of prodding that certain of the awards made were on any footing justified and it was said that he would honour those awards, (those were respectively the unlawful deductions from wages of £2332 and the holiday pay £207.09) so even if I had been with the Appellant in relation to his general submissions the decision of the Tribunal would still have stood in relation to those two matters. But for the reason that I have given the appeal will be dismissed.