Appeal No. EAT/1063/00
	                    EAT/1064/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 November 2000

Before
SIR CHRISTOPHER BELLAMY QC
MR A E R MANNERS
MR A D TUFFIN CBE

TOKYO DINER PLC	APPELLANT

MISS S MATSUMOTO	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCE

For the Appellant	SARAH HOUGHIE
Solicitor
Messrs Bow & Shore
Solicitors
13 Wager Street
London E3 4JD	

SIR CHRISTOPHER BELLAMY QC

1	We have before us today two appeals in this matter.  The first is from the Employment Tribunal sitting at London North, the Decision of which was sent to the parties on 11 July 2000.  In that Decision, the Tribunal decided certain preliminary points, namely: (1) that the Applicant’s claim for unfair dismissal was presented within three months of the effective date of termination of her employment with the Respondents and (2) that she had more than one year’s continuous service with the Respondents.  On that basis the Tribunal decided that the matter should proceed to a full hearing on the merits of her case as to whether or not she had been unfairly dismissed.  

2	The second appeal is from a Decision of the Chairman of the Tribunal which is dated 31 July 2000, whereby the Chairman refused to review the Decision of 11 July 2000 under Rule 11 of the Employment Tribunal Rules.  The circumstances of that second Decision are that in this particular case the Decision of 11 July 2000 was given in the absence of the Respondents’ solicitor, Ms Houghie and indeed in the absence of any person being present on behalf of the Respondents.  

3	What happened on that last point is very briefly that Ms Houghie was having hospital treatment at St Bartholomews Hospital; the times of her appointments were very unpredictable and could only be notified to her shortly in advance.  Although she had expected that her next treatment was to be the day after the hearing in question, she was in fact informed at 5 pm the day before the hearing that she had an appointment for the following day, that is to say the day of the hearing, at 12.20 pm.  She apparently tried, so she tells us, to contact the Tribunal in order to tell them of her difficulty, but at that stage, so she says, the Tribunal’s office was closed.  
4	It was, says Ms Houghie, at that stage, very difficult to arrange alternative cover, so she went herself the following day to the Tribunal hearing and when she arrived there, she found that the case was floating.  Anxious to know what she should do, she asked the Clerk, so she tells us, for permission to appear before the Tribunal to ask for an adjournment.  She tells us that she had repeatedly asked the Clerk to organise this, but the Clerk had refused to allow her to do so, or to enter the room where the Tribunal was sitting.  

5	Given that a number of cases, according to Ms Houghie 14 in all, were floating that day, she approached the Respondents and obtained their agreement that the case could come on after her return from her hospital appointment around about 3 o’clock in the afternoon.  She further says that she had asked the Clerk to ensure that that should happen, and that the Clerk had told her that it was more likely than not that the hearing would be after lunch.  According to the Notice of Appeal, she had agreed with the Clerk that the matter would be heard after she returned, which would be not later than 3 pm.  

6	She left the Tribunal at 11.30 am to attend the hospital and returned shortly after at 2 o’clock.  She was then very concerned to learn that in fact the case had been already dealt with in her absence, and despite the fact that, when she returned, there were still some other cases that had not yet been heard.  

7	In rejecting the application for a review of the Decision, the learned Chairman in paragraph 4 says that the Tribunal staff were not in a position to give an indication as to the likely time of the case being called upon, that it was not appropriate for a representative to seek to absent themselves for a long period of time during the working day, in the anticipation that a court or tribunal would arrange a business around the convenience of that representative, and that the representative should have arranged cover, from Counsel, to represent their clients, and it is not for the representative to seek to delay hearing the case without at any point coming before the Tribunal to seek judicial approval of their actions.

8	As regards the main appeal, the circumstances of the main case are very briefly as follows: it seems to be common ground that the Applicant was employed by the Appellants, who run a Japanese restaurant, from 31 July 1998, but her work permit to be in the United Kingdom apparently expired on 30 June 1999 and she returned to Japan.  She says in the form annexed to the IT1 that she considered herself to be “still working for Tokyo Diner in Japan”.  

9	In September 1999, however, she was persuaded to return to the United Kingdom, with a work permit, on the apparently untrue basis that she was coming here for a holiday.  She was stopped at Heathrow Airport and interviewed for some 26½ hours, as a result of which the Immigration authorities were not satisfied with her explanation, and she was deported back to Japan on 7 October.  She then remained in Japan until 28 December 1999.  Apparently, the Respondent Company had tried to get a work permit for her, which eventually arrived in December 1999, as a result of which the Applicant arranged to fly back to the United Kingdom on 28 December 1999, having booked a return flight to Japan for 6 January 2000; as she says “I intended to give notice to the company”.  

10	When she arrived in this country, her visa problems took in fact a little longer to sort out.  She did not return to Japan on 6 January and she eventually saw a Mr Hill of the Respondent Company on 19 January.  On that occasion Mr Hill, apparently, gave her a reference, which we have not seen, stating that she was employed from October 1995 to January 2000.  

11	The IT1 was presented on 1 April 2000, so it was crucial to her case to establish that the effective date of termination was within 3 months of the date of the presentation of that IT1.  It was also important to establish that she was employed continuously for a period on one year, the Respondents’ contention being that she was only employed from 31 July 1998 to 30 June 1999.  

12	The Respondents’ IT3  in this case sets out the Respondents’ contentions that her employment ceased on 30 June 1999.  They produced an E-Mail from the Applicant to the Respondent Company dated 18 December 1999, a letter from the Overseas Labour Service stating that her work experience was only approved until 30 June 1999 and an extract from her passport, showing that she had permission to stay only until 30 June 1999.  The IT3 also makes the point that the foreign employees of an English company are generally not protected by the Employment Rights Act 1996.

13	The Decision of the Tribunal was that they were satisfied, on the basis of the evidence before them, that the Applicant had been employed by the Respondents until 19 January 2000 when the reference, to which we have just referred, was made: that was in paragraph 5 of the Tribunal’s Reasons.  

14	In considering these papers, we have noted that the Tribunal does not deal in its Decision either with the various facts that have been set out in the IT1, regarding the Applicant’s various absences from the United Kingdom, nor do they deal with the arguments set out in the IT3, including the material that is annexed to that application.  Even if the Tribunal was entitled to proceed in the absence of any representative from the Respondents, and to rely on evidence that was given in the Respondents’ absence, it would appear to us, at least at first sight, that it is arguable that the Tribunal should have dealt expressly with those matters that were in the material before them.  

15	We are of the view, in those circumstances, that on the substantive case, there are two reasonably arguable points of law: the first is whether the Tribunal erred in law in deciding that the complaint was presented within 3 months of the effective date of termination of the Applicant’s employment, and in deciding whether the Applicant had more than one year’s continuous service of employment with the Respondents; and the second point of law is whether the Tribunal erred in law in not providing sufficient Reasons to enable the Respondents to understand the basis of the Tribunal’s Decision.  

16	That takes us on to the second appeal, which is concerned with the Chairman’s refusal to review the substantive Decision.  It was not part of the application for review of the substantive Decision that there were points which would have been made, had the Respondents been present, but we have some concern that, had the Respondents been present, the Tribunal would have been able to take into account a number of matters which appear to us to be relevant on the face of the documents that have been submitted to us.  In the light of the explanations that we have had from Ms Houghie, as to the circumstances in which the Tribunal decided to list and hear this case in the absence of the Respondents, it does appear to us that it would be in the interests of justice for the appeal against the refusal to review the Decision to go forward together with the appeal on the substantive case.  The question of law arising is whether the Tribunal, in the circumstances, exceeded the discretion that is properly accorded to it, under Rule 9(3) of the Employment Tribunal Rules, in deciding to proceed in the absence of the Respondents.  

17	So on those points we allow both appeals to proceed to a full hearing.  We should also give Directions as to the conduct of these category C cases - half a day, Skeleton Arguments to be exchanged.  

18	What we also direct is that you Ms Houghie provide a witness statement within 21 days of today, setting out your account of how matters transpired on 14 June 2000 - a factual account - and that, when that statement has been lodged with this Tribunal, the Chairman is invited to comment on that statement so that, when the full appeal comes on, everyone is in a position to know what happened and what is agreed and what is not agreed.