Woods & Anor (t/a The Zone Night Club) v Wills [1995] UKEAT 343_95_1007

EAT
Woods & Anor (t/a The Zone Night Club) v Wills
[1995] UKEAT 343_95_1007 · 1995-07-10
MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal against the decision of the Industrial Tribunal held in Cardiff on 28 February 1995. The Tribunal had before them a claim for unfair dismissal made by Miss Wills, Assistant Manageress, previously employed by Mr Woods, trading as The Zone Night Club in Port Talbot. The Tribunal unanimously decided that Miss Wills's dismissal was unfair. She was entitled to compensation assessed at £4696.80, which includes two weeks net pay for failure to provide written reasons. The full reasons for the decision were sent to the parties on 9 March 1995. Mr Woods and his wife appealed against that decision. The Notice of Appeal was served on 23 March 1995. The ground of appeal was stated as follows:
"Due to one of our letters not arriving at the Tribunal, we were not allowed to speak at the Tribunal, which is very unfair as only one side of the story has been heard."
There is a fuller explanation of the grounds of appeal in the letter which accompanied the Notice of Appeal, dated 23 March 1995 and sent to the Registrar of this Tribunal.The purpose of the Preliminary Hearing is to decide whether Mr and Mrs Woods can show that their appeal raises a point of law that can be reasonably argued at a full hearing of the appeal. If there is not a point of law, this Tribunal has no power to hear the appeal because the Employment Protection Act limits the grounds of appeal to points of law. What is the point of law in Mr and Mrs Woods's case? Mr and Mrs Woods attended personally. They have both given us explanations and shown us various documents. They have a number of complaints about the way in which their case was handled. To decide whether those complaints have any legal point in them, it is necessary to consider the basis upon which the Tribunal made a decision in Miss Wills's favour.The Tribunal devoted five paragraphs of its full reasons to explaining the procedural history of the dispute. The position was that Miss Wills started her case against The Zone Night Club by presenting an Originating Application to the Industrial Tribunal. That application was presented on 14 November 1994. She set out in the details of her complaint the dates of her employment and the circumstances in which she had been dismissed. The Tribunal said that no appearance had been entered to her application. It appears from the documents that on 24 January 1995 a Notice was sent from the Regional Office of Industrial Tribunals at Caradog House, 1-6 St Andrews Place, Cardiff to The Zone Night Club in Port Talbot, Christchurch Road, stating that the case of Miss Wills against The Zone Night Club would be heard at the Industrial Tribunal in Cardiff on Tuesday 28 February 1995. It was emphasised in the Notice that only in wholly exceptional circumstances would a postponement be allowed. It was emphasised too that all representatives must inform those they represent of the date, time and place of the hearing.The Tribunal referred to a fax received at the Regional Office of the Industrial Tribunal on 22 February, stating as follows:
"Our manager will be attending the hearing on 28th Feb 95, at 10am. He has sent a letter to you but it seems you have not received it, this is by way of confirmation that Mr Short will be attending."
That was signed R Woods, Proprietor. A copy of the letter alleged to have been sent by Mr Short did not accompany the fax. That letter was acknowledged on 27 February. Mr Woods was told that the matter would be dealt with at the hearing. Mr Woods did not attend the hearing. He explained that, for a year or so, he has suffered from health problems. He has also been faced with financial problems and debt in the running of the Club. Mr Short turned up instead. The Tribunal said:
"4. ... At the commencement of the hearing he [Mr Short] was examined by the Tribunal as to the purported Appearance, and as to whether any reason for the delay, and whether notwithstanding the failure to lodge an Appearance, he should be heard as to the respondents' case. He proved to be a most unsatisfactory witness. He had not brought with him a copy of the letter which he claimed had been sent although he said one was on file at the Club. He claimed that he had provided the information and that the Club Accountant, one Mrs Veena Staton, had written the letter. Later in his evidence he alleged that he had written the letter but Mrs Staton had sent if off.
5. It became apparent during the applicant's evidence that forms had been filled in in reply to questions from the Department of Social Security in respect of the applicant's entitlement to benefit [we have seen a copy of that form] and we believe they were completed by Mrs Station and that Mr Short was completely confused. He was not able to persuade us that any action had been taken by the respondents in reply to the application lodged by Miss Wills. No reason was offered; no copy of the alleged letter was produced. We were satisfied that the respondent had no status and was not entitled to be heard. The position was fully explained to Mr Short who was told he could not take part in the proceedings and was free to leave if he wished to do so. He left and the Tribunal then heard the applicant's case."That part of the Tribunal's reasons is the main part of the ground of appeal: Mr and Mrs Woods' case was not heard. In our view, there was no error of law by the Tribunal in their conclusion that Mr Short was not entitled to take part in the proceedings. We have to go by the rules and so do the Industrial Tribunal. The rules are that a respondent, such as The Zone Night Club, in the form of Mr Woods and his wife, must, within 14 days of receiving the Originating Application, enter an appearance to the proceedings by entering a written Notice of Appearance. The written Notice of Appearance must state the particulars of the grounds on which the application is disputed. On receipt of the appearance copies are then sent to the other parties. Rule 3(2) of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 provides:
"A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings, except for certain purposes."
The only purpose which could be relevant is an application for extension of time. The Tribunal treated Mr Short as making an application for extension of time, but, for the reasons stated in paragraphs 4 and 5 of the decision, they were not persuaded to grant one: they were not persuaded there was a satisfactory reason for failure to send in the Notice of Appearance. There is no error of law in the Tribunal's refusal to let Mr Short take part in the proceedings. There is no excuse for the failure to enter the Notice of Appearance. Mr and Mrs Woods have explained several times during the hearing that the application appearance documents went to the wrong premises. They pointed out that there was another address in Cardiff at which the Industrial Tribunal was operating, in Wood Street as well as Caradog House. There is no explanation as to why there was no full response to the form sent out on 24 January 1995. The only response was that there was a letter which had been sent, but no-one has been able to produce a copy of the letter, even though Mr Short said there was a copy on the file at the Club's premises. In our view, the Tribunal made adequate investigation as to the reason for not entering an appearance. They were not satisfied by the explanations given by Mr Short. They were entitled to proceed with the hearing of the application on the evidence of Miss Wills alone. That leads to the second point of the appeal. Miss Wills, Mr Wood said a number of times, told lies to the Tribunal and obtained a result which will be the ruin of his business.The position is this, as the Tribunal were entitled to proceed in the absence of The Zone Night Club, they were entitled to hear Miss Wills evidence. There was no-one there to contradict it. If the Tribunal chose to believe it, they were entitled to accept it, even if Mr Woods contends that that evidence is untrue. We do not know whether Miss Wills's evidence was true or untrue. We do know that, as a matter of law, the Tribunal were entitled to proceed with the hearing and to accept Miss Wills's evidence if they chose to do so. In our view, the trouble has been caused by the failure of The Zone Night Club, either acting through its proprietors, its manager or its accountant, to take the necessary steps to contest the proceedings. As they have not taken those steps, they must take the consequences of failing to take those steps. There is no arguable error of law in this Tribunal's decision. We dismiss the appeal.