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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Malyon v. Kingswell [1999] UKEAT 114_99_0705 (7 May 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/114_99_0705.html Cite as: [1999] UKEAT 114_99_705, [1999] UKEAT 114_99_0705

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APPEARANCES

 

For the Appellant	NO APPEARANCE BY NOR ON BEHALF OF THE APPELLANT


 


JUDGE PETER CLARK: By an Originating Application presented to the Southampton Employment Tribunal on 31st July 1998 the applicant, Miss Kingswell, brought a complaint of unlawful deduction from wages against the respondent, Mr Mark Malyon Harlequin Home Help Services. ["Harlequin"]. She alleged that she had worked for the respondent as a home-help between 4th February and 30th April 1998 and was owed arrears of wages. In the form IT1 she gave his address as 15 Wildfell Close, Bronte Estate, Christchurch, Dorset.

No appearance was entered; the respondent did not attend the hearing of the complaint before a Chairman, Mr R E Barrowclough, sitting alone at Southampton on 21st September 1998. The Chairman accepted the applicant's evidence contained in written representations that she had performed 61 hours work as a home-help for the respondent at £4 per hour; that despite letters from the applicant, her father and her solicitor the respondent had not disputed the claim and he award her £244 unpaid wages. That decision, with summary reasons, was promulgated on 30th September 1998.

By a letter dated 12th October 1998 the respondent applied for a review of that decision. In that letter he said that he no longer lived at the Wildfell Close address, although he still owned the property. Secondly, he denied that he had ever employed the applicant; her employer was Harlequin, by whom he was also employed as Operations Manager. The owner of Harlequin was a Mrs Christine Cooke. Thirdly he said that he had been in France for the last four weeks and had not received the documentation. He would have wanted to be at the Employment Tribunal to defend himself. Finally, he denied that the applicant was owed 61 hours wages by Harlequin.

That application was dismissed by the Chairman in a review decision, promulgated with extended reasons on 26th November 1998. The Chairman treated the application as one made under Rule 11(1)(b) of the Employment Tribunal Rules of Procedure, that is, that the respondent did not receive notice of the proceedings leading to the original decision, and dismissed it under Rule 11(5) on the grounds that it had no reasonable prospect of success. His reasons for so finding are set out in paragraph 3 of the review decision reasons and are as follows:

"a) The Application to the Tribunal was sent to the Respondent on 4 August 1998, and not returned undelivered.

b) It was plain from the copy correspondence submitted by the Applicant in support of her claim that numerous letters had been written by the Applicant's Solicitor to the Respondent at the address set out in the IT1 (15 Wildfell Close, Brontey Estate, Christchurch, Dorset) and not returned undelivered.

c) the Respondent accept in his letter of 12 October that he owns, and indeed continues to own, that property.

d) Notice of Hearing was sent to the Respondent on 2 September 1998. Plainly the Respondent was not abroad in France before the weekend of the 12th/13th/ September at the earliest.

e) The Notice of Hearing was returned to the Tribunal on 15 September. The envelope, on which the Employment Tribunal's details as sender are plainly stated, was marked "no longer at this address - return to sender".

f) In my view, even if the Respondent was not resident at the property, which he owned, it is inconceivable that the envelope containing the Notice of Hearing would not have been forwarded to him by the occupant(s) or that it would have been legitimately returned by any occupant to the Tribunal so endorsed.

g) Finally, I am aware of the details of a very similar claim against the Respondent put forward by a Mrs J F Frances (case number 3100578/98). There too, correspondence was sent to the Respondent at 15 Wildfell Close, Christchurch. There too, documents from the Tribunal were returned by the Post Office marked "gone away". In that case, the Regional Chairman made an Interlocutory Order on 6 October 1998 stating that he was satisfied that the Respondent was at the relevant time at that address and that he was deliberately avoiding service.

h) I am similarly satisfied and accordingly I conclude that the application for review has no reasonable prospect of success."

Against the review decision the respondent has appealed by a letter dated 5th January 1999, treated as a Notice of Appeal.

The appeal was listed for a preliminary hearing today. There has been no attendance by or on behalf of the respondent. No explanation has been provided. In these circumstances we have proceeded to consider the appeal on the papers.

In response to the Chairman's reasoning at paragraph 3 of the review decision reasons the respondent disputes the suggestion that he has sought to evade service, and now states, contrary to that which was contained in his review application, that he was in fact abroad from 3rd September to 10th October 1998.

We can only interfere with an Employment Tribunal decision where an error of law is made out. There is none advanced in this case. The tribunal Chairman was entitled to reach the conclusions which he did on the material before him. In these circumstances we shall dismiss this appeal.