Appeal No.	 EAT/1217/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 February 2000

Before
HIS HONOUR JUDGE COLIN SMITH QC
LORD DAVIS OF COITY CBE
MR R N STRAKER

MR D MARTIN & OTHERS T/AS DEAN FILMS (NORTHERN)	APPELLANT

(1) MR M KEAY	RESPONDENT
(2) MR D KEAY

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY THE APPELLANT	

JUDGE SMITH:

1.	This is an appeal by Mr D Martin and others trading as Dean Films (Northern) against a decision of an Employment Tribunal held at Manchester on the 24th day of June 1999 of which extended reasons were sent to the parties on 16th September 1999 whereby the Employment Tribunal, held unanimously that the employers had breached Mr David Keay’s contract of employment, he being one of the two applicants before the Employment Tribunal and he was awarded compensation in the sum of £3,084.00.  

2.	The Employment Tribunal also found that Mr David Keay, the same gentlemen, was unfairly dismissed and he was awarded compensation in the sum of £13,320. The Employment Tribunal further found that the Respondent employers, the Appellants before us, had breached Mr Michael Keay’s contract of employment and awarded compensation to him in the sum of £1,166.00.  

3.	As appears from the decision, the Employment Tribunal noted and found at paragraph 3 of the decision that, although the Respondents before them had entered a notice of appearance to the effect that the two applicants, Mr David Keay and Mr Michael Keay had been fairly dismissed for gross misconduct they had failed to attend the hearing before the Employment Tribunal, either in person or by any representative.  In those circumstances the Employment Tribunal, in our judgment correctly, proceeded to hear the matter in the absence of the Respondents and made sure that the matters that were raised in the notice of appearance were put to the applicants when they gave evidence before the Tribunal. 

4.	We have no reason to believe that the Employment Tribunal were other than satisfied that proper notice of the hearing before them had been given to the Respondents.  The Employment Tribunal then proceeded to make detailed findings of fact, as set out in paragraphs 4-10 of the decision, which are self-explanatory, and they then expressed their conclusions in paragraphs 11-13 and assessed compensation in paragraph 14.  

5.	We should make clear that we have considered the Notice of Appeal, which is in the form of a letter dated 28th September 1999 from Mr David Martin at pages 1-2 of our bundle.  We have reminded ourselves that the Appellants before us only have to show an arguable ground of appeal to be allowed to proceed to a full hearing but the fact of the matter is that, although they have had notice of today’s hearing and we are satisfied about that, there has been no representation from them today at all.  We have taken into account the documents in the appeal bundle.

6.	As is now clear, what happened was that, after the decision of the Employment Tribunal had been sent to the parties, there was a letter by Mr Martin, not only to the Employment Appeal Tribunal on 28th September 1999, by way of a Notice of Appeal, which is the document we have already referred to, but also, concurrently, a letter to the Employment Tribunal itself seeking a Review and that letter is to be found at pages 20-21 of the bundle.  There was a reply from the Regional Secretary at page 22, a follow-up request by way of a letter of 1st October 1999 at page 23, and then there was a decision made to hold a review hearing at which the application for a Review would be considered, as is clear from the Employment Tribunal’s letter of 7th October 1999, and we now have had the benefit of being provided with the full reasons given by the Tribunal at Manchester on the application for a Review, the decision on the application for a Review having been given on 13th January last and sent to the parties on 1st February a few days ago.  

7.	Although the proposed appeal before us is in respect of the Employment Tribunal’s decision made in June 1999, we have taken care to look at the decision on Review and we note that the Employment Tribunal heard evidence from a Mr G Martin on behalf of the Respondents who were applying for a review.  They found detailed facts in relation to the question as to  whether or not the Respondents had received notice of the hearing and they concluded at paragraph 12 as follows:-

“In this case, the Tribunal is satisfied that the application and notice of hearing were properly served.  They were sent to the registered address of the partnership and in the first place, specifically to “Deans”.  They were subsequently dealt with by the father of two of the partners who held a senior role within the organisation and who had responded initially “on behalf of Deans”.  The fact that Mr S Martin apparently chose not to inform his sons of these matters is not material.  He was a senior figure within the organisation, meeting with the Judical Factor and to all intents and purposes, acting as the representative for the partnership.”

8.	In was in those circumstances and particularly (as they had noted earlier) because Mr David Keay, one of the applicants, had actually reported to Mr S Martin, that the Tribunal concluded that the application for a Review should be refused.   There is no appeal before us in relation to that review decision and we cannot entertain any such appeal but we observe that we can see nothing wrong in the way in which the Employment Tribunal dealt with the application for a Review.  

9.	We are quite satisfied that there is no proper ground of appeal or arguable ground of appeal shown in any way in respect of the original decision of 24th June 1999 which was properly arrived at by the Employment Tribunal for the reasons we have already given and which discloses no arguable or discernible error of law.  It may well be, we suspect, that the Appellant’s have now accepted the position in the light of the decision on review and that may be the explanation for Mr Martin’s non-appearance before us today.  

10.	In those circumstances, we have concluded that we must dismiss this application for leave to proceed to a full hearing of the appeal.