Appeal No.EAT/0513/02 RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 October 2002

Before
HIS HONOUR JUDGE J BURKE QC
MR P A L PARKER CBE
MR S M SPRINGER MBE

POLESTAR WATFORD LTD	APPELLANT

MR R L SIMMONDS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised 10 January 2003

	APPEARANCES

For the Appellant	MR STEVEN WEBB
(Solicitor)
Instructed by:
Messrs Gepp & Sons Solicitors
58 New London Road
Chelmsford
Essex CM2 0PA	

HIS HONOUR JUDGE J BURKE QC

1	This is the Preliminary Hearing of an appeal by the Respondent employers, Polestar Watford Ltd, against the Decision of the Employment Tribunal sitting at Watford, chaired by Mr G M Pettigrew and sent to the parties with Extended Reasons on 25 March 2002.

2	Mr Simmonds had complained to the Tribunal that he had been unfairly dismissed and the victim of disability discrimination.  His disability discrimination claim was withdrawn and his claim proceeded on unfair dismissal only.

3	The effect of the Tribunal’s decision was this.  They decided that the employers had acted unreasonably in the conduct of the proceedings.  They therefore struck out the Respondents’ Notice of Appearance and ordered them to pay the Applicant’s costs in so far as they arose out of the unreasonable conduct.

4	Having thus struck out the Notice of Appearance, the Respondents were not able to play any further part in the proceedings.  The Tribunal went on and heard the unfair dismissal claim with only the employee’s side before it, found that Mr Simmonds had been unfairly dismissed and awarded him a sum of £13,588.40 by way of compensation.

5	The main thrust of the appeal, as set out in the Notice of Appeal, is that the Tribunal should not have come to the conclusion that the Notice of Appearance should be struck out.  If the Tribunal were wrong in so deciding then no doubt it would be said that the substantive decision that Mr Simmonds had been unfairly dismissed would have to be set aside because, if the striking out of the Respondents’ Notice of Appearance should not have been ordered, plainly the Respondents had been deprived of the opportunity to challenge Mr Simmonds and any witnesses he called and to call evidence of their own to rebut his claim.

6	The claim was originally listed for hearing by the Tribunal on 4 and 5 December 2001.  The Respondents’ solicitors appear to have been instructed late.  They sought an adjournment on the basis that a principle witness, a Ms Brownlie, was ill.  We are told today that she had suffered a whiplash injury and had experienced subsequent depression and was off work for a very substantial period of time.

7	On 23 November the Tribunal sent out a letter which was intended to be sent in at least three copies or possibly four; one to Mr Simmonds’ solicitors, one to the employers and one to the employers’ solicitors.  In that letter they indicated that the adjournment sought was granted and asked the parties to inform them when they would be available for a hearing.

8	The employers denied that they had received that letter.  The two firms of solicitors accepted that they had.  The employers’ solicitors, however, did not respond to it and did not send any dates when they would be available for a hearing.  Mr Webb, who has appeared on behalf of the employers today, tells us that that was because he did not know when Ms Brownlie would be available; but that is no real explanation of his firm’s failure to respond to the Tribunal’s letter at all.

9	Not having heard from the Respondents’ solicitors or the Respondents by way of response to the letter of 23 November, the Tribunal sent out another letter on 12 December listing the hearing for 11 and 12 March 2002.

10	On 5 March, Mr Webb, on behalf of the Respondents, sought an adjournment.  He said that he had not received the Notice of Hearing and did not know about it and that Ms Brownlie was still ill.  The Tribunal did not make a decision on the basis of the letter but left it to the following Monday morning, 11 March, at the beginning of the scheduled hearing for Mr Webb to renew his application, as he did.

11	The Tribunal came to the conclusion that the unpreparedness on the employers’ side or their need for an adjournment was derived from unreasonable conduct.  Central to but not exclusive to that conclusion was the question as to whether the employers or their solicitors had received the letter giving notice of the hearing on 11 and 12 March 2002; that is to say, the Tribunal’s letter of 12 December.

12	It was not in dispute that Mr Simmonds’ solicitors had received that letter.  It was the Respondents’ case that neither they nor their solicitors had received it.  The Tribunal found that it had been posted to all three; therefore the presumption in section 7 of the Interpretation Act 1978 applied and the employers had not rebutted that presumption.  Thus they concluded that the Notice of Hearing had been delivered to the employers and that the employers’ side knew about the hearing.  They did not therefore need to make, and did not make, any finding as to whether the employers’ solicitors had received that letter.

13	After taking into account, in the context of their finding that the employers had received that letter, the timetable overall and other factors such as the fact that three letters had been sent by Mr Simmonds’ solicitors to the employers’ solicitors, on 28 December 2001 regarding a bundle for the hearing, on 29 January 2002 enclosing Mr Simmonds’ statement and referring to an impending hearing, and 28 February 2002 sending a draft chronology – each of which three letters received no response from the employers’ solicitors – the Tribunal came to the conclusion that there had been unreasonable conduct.

14	Mr Webb, on behalf of the employers, attacks that conclusion.  The arguments in his Skeleton Argument and in the Notice of Appeal are primarily directed against the Tribunal’s finding that the letter of 12 December had been posted to the employers or the employers’ solicitors; but they made no finding as to receipt by the employers’ solicitors.

15	Before addressing the grounds on which that part of the appeal are put forward it is necessary to say one more thing.  In paragraph 6.7 of the Notice of Appeal the grounds suggest that the Tribunal Chairman spoke to the Tribunal clerk, who actually gave evidence at the hearing on 11 March, before the hearing and discussed with her the problems about the posting of the letters; the grounds assert that the Chairman should not have done so and was clearly not acting as an independent person capable of dealing with her evidence in an impartial manner.

16	That allegation was seen as an allegation not of bias but of misconduct on the part of the Chairman and rightly so seen.  The employers, or their solicitors, were therefore asked (pursuant to the Tribunal’s practice) to support the allegation with an affidavit and were warned that if they did not do so allegations involving misconduct or bias would be struck out.  They did not respond.  No affidavit was supplied and therefore an order striking out any such allegations was made.

17	The only paragraph in the Notice of Appeal which contains any such allegation is paragraph 6.7.  Although Mr Webb has suggested today that it does not contain an allegation of misconduct, it is perfectly plain to us that it does and it is unarguable that it does not; and we therefore take the view that that paragraph, having been struck out, it must play today and hereafter no further part in this appeal.  We do not propose to address it.

18	We therefore look at paragraphs 6.1-6.6 of the Notice of Appeal.  In effect what those paragraphs contend is this, as explained by Mr Webb today.  The evidence of the Tribunal clerk was that three copies of each of the two letters (that of 23 November and that of 12 December) were prepared and put in a tray to be taken to the posting department, as was the Tribunal’s system.  There was some flaw in the procedure because it was discovered that the address in the Tribunal’s records for the Respondents was incorrect; the address had changed in some minor but possibly relevant way – the postcode had been changed among other things.  The clerk’s evidence was that that error in the records of the Tribunal was corrected by the writing, typing or printing on the requisite envelope of the true address of the employers.

19	That evidence could not be challenged and was obviously accepted by the Tribunal; and it showed that the system worked, at least thus far.  The fact of the flaw in the procedure in relation to the keeping of the records could not possibly have been evidence that there was some further flaw in the way in which the letters, having been put in the tray with the correct addresses, were then taken through the next step, namely their journey from the tray into the post room and then into the post bag or post box, or whatever receptacle it was into which they were put before they were actually delivered into the hands of the post office.

20	If none of the three copies of the letter in three envelopes had ever been delivered it would have been difficult for the Tribunal to have come to the conclusion that that part of the Tribunal’s procedure for posting had actually worked in this case.  But that was not so.  As the Tribunal found, in the case of the letters of 23 November, at least two of the three copies had arrived at their destination because both sets of solicitors received them.  In the case of the letter of 12 December Mr Simmonds’ solicitors had received their copy; and that was sufficient, in our judgment, for the Tribunal to rely upon in coming to the conclusion that the three envelopes, which were put together into the tray at the same time, had been picked up and put through the posting system, whatever that posting system was.

21	The contrary, in our judgment, is simply unarguable.  There was material from which the Tribunal were entitled to come to the conclusion that all three copies of the letter of 12 December were put into the post.

22	Having concluded, as they were entitled to do, that at the very least the letter to the employers had been put in the post, section 7 of the Interpretation Act operated to put a burden on the Respondents to show that they had not actually received it.  The Tribunal concluded that they had not discharged that burden. The Tribunal were told there was another file of correspondence in the Respondents’ offices which was not brought to the Tribunal and had not been looked at but which could have had their copy in it.  There was therefore material on which the Tribunal could conclude that the burden had not been discharged and it is not arguable that there was no such material.  Accordingly, the decision of the Tribunal, that notice of the hearing had been given to the employers, is not open to attack on any arguable grounds of appeal, as we see it.

23	The conclusion that the conduct of the Respondents and/or their solicitors (and the Tribunal was not distinguishing between them, nor did it need to do so) had acted unreasonably was equally one which the Tribunal was entitled to reach; and we see no arguable basis on which it can be attacked.

24	Thus, having already dealt with paragraph 6.7 of the Notice of Appeal, we see nothing in the Notice of Appeal at paragraphs 6.1-6.6 which gives rise to an arguable ground of appeal.

25	However, Mr Webb has, with some assistance from us, submitted that the Tribunal came to a conclusion which was, as he puts it “too severe and disproportionate”, and failed to consider whether a fair trial could have been had.

26	Even if the Tribunal had not struck out the Notice of Appearance and had then proceeded to refuse an adjournment, Mr Webb tells us had he as a result been permitted to represent his clients, he would have been able to cross-examine Mr Simmonds and would have been able (although he did not have Ms Brownlie present and probably could not have got her to the hearing) to call the employers’ Managing Director, who was in his office in Watford, and another witness who was at the Tribunal.  He was deprived of the opportunity to do so by the striking out order.

27	He submits that that was disproportionate, or arguably so, and that a fair trial could have been had.  It may have been an attenuated trial, so far as the material he wished to produce was concerned; but at least it would have been a hearing on a bilateral basis.

28	Not without some hesitation and reluctance having regard to the Tribunal’s findings in relation to the unreasonable conduct on the part of the Respondents and their solicitors, we regard those points and those points only as arguable and that it would be right to let them go through to a full hearing of this appeal.

29	We think that the Notice of Appeal is going to need some amendment to reflect those two points accurately and we will have a word with Mr Webb about that in one moment; but our conclusion is that paragraphs 6.1-6.7 of the Notice of Appeal do not give rise to any arguable ground of appeal; only paragraph 6.8 as suitably amended does.  It needs to be amended to contend that striking out was disproportionate and that there was a failure to consider whether a fair trial of the proceedings could still be had.  We direct that the Respondents amend the Notice of Appeal appropriately within 14 days and part of the order will be that I should approve that Notice of Appeal before it is regarded as effective and before this appeal goes through so that I can check that the amendment is in terms which embrace what we have said in this judgment.

30	2 hours, Category C.  No further directions needed except the usual Skeleton Arguments.