B P S International Plc v Taylor [1996] UKEAT 474_95_2601

EAT
B P S International Plc v Taylor
[1996] UKEAT 474_95_2601 · 1996-01-26

JUDGE SMITH QC:

This is an application for leave to proceed to a full hearing made ex-parte by the Applicants before us, the Respondents before the Industrial Tribunal, BPS International Plc, who have been represented before us today by Mr Ellis. The proposed appeal is against the decision of an Industrial Tribunal sitting at London (North) on 5 April 1995, which decision was recorded as being sent to the parties on 21 April 1995 and appears certainly to have been sent to the parties on 21 April 1995. The unanimous decision of the Industrial Tribunal was that the Applicant's claim, [Mr A Taylor] the Applicant before the Tribunal, succeeded in the sense that it was the unanimous decision of the Industrial Tribunal that a sum of £1,370 had been an unauthorised deduction from the Applicant's wages. It is apparent from the extended reasons of the Industrial Tribunal that they accepted and upheld a claim by Mr Taylor under the Wages Act 1986 , that there had been an unauthorised deduction of wages in relation to his employment, as he asserted it was, by the Respondents BPS International Plc at the rate of £550 per month. The Industrial Tribunal held in paragraph 2 of the decision, having stated in paragraph 1:
"... We therefore proceeded to deal with the question of the unauthorised deductions from Mr Taylor's wages and the failure to provide itemised pay statements."
They continued in paragraph 2:
"So far as the claim for deduction of wages were concerned, we accept Mr Taylor's statement that he was to be paid not less than £550 per month. We also accept that he was not paid for the months of November or December and that he left the Respondents' employment on 23 January so that he is entitled on the basis that wages accrue from day to day to 23 x 31 of the month's pay for the month of January. Accordingly as we accept the fact that Mr Taylor has not been paid for the whole or any part of this period we make a declaration pursuant to the provisions of the Wages Act 1986 that his claim is well founded and we order the Respondents to pay to the Mr Taylor the sum of £1,370. This is unpaid wages of £500 for November, £500 for December and £23 x 31 of £500 in respect of January."
They then go on to deal with the matter of itemised pay slips and they make a declaration that itemised pay slips were never supplied.It is perfectly clear, in our judgement, that the Industrial Tribunal found as a fact that Mr Taylor was employed, that is absolutely implicit in their findings. They found as a fact that he was employed by BPS International Plc. They found as a fact that he was to be paid not less than £550 per month and they found as a fact that he had not been paid for the months of November or December, or the proportion of January up until the time when they found as a fact that he left the Respondents' employment, namely 23 January 1994.It is to be noted before we turn to the application before us that there was no appearance by the Respondents before the Industrial Tribunal. It is also to be noted from the documents in front of us, that there is a history to this aspect of the matter. We have in front of us an Interlocutory Order which was made by the Chairman of the Industrial Tribunal on 4 April 1995. That is to say, immediately before this hearing. That Order is in these terms:
"In exercise of the powers conferred upon me by the Rule 13(2)(e) and (3) of the Industrial Tribunals (Consolidation and Rules of Procedure) Regulations 1993, I order the Notice of Appearance dated 28 March 1994 to be struck out on the grounds that the manner in which the Respondent has conducted the proceedings has been frivolous."

" REASONS

1. The Respondent has failed, despite reminders, to comply with the Order of the Tribunal dated 20 February 1995."So there was that unusually severe penalty being imposed by this experienced Chairman (it may not have actually have been the same Chairman who heard the matter on 5 April). It is apparent from the terms of that Order that the Respondents had been conducting the proceedings in a frivolous manner, in the sense that the Respondent, the Applicant before us, had not complied with earlier orders of the Tribunal. The matter had started life in the usual way by an application being made to the Industrial Tribunal on 5 March 1994. Amongst other claims that were made was a clear claim being made by Mr Taylor for non-payment of wages under the Wages Act 1986 . There were other claims made. There was apparently a Notice of Appearance put in with quite a lot of documents attached to it. After that, we are driven to the conclusion that the Respondents just did not follow up the matter efficiently or in any effective way at all, but simply allowed the matter to go by default in the sense that, as is clear from the Interlocutory Order which we have in front of us, that there were Interlocutory Orders made by the Industrial Tribunal which were totally disregarded, despite reminders, by the Respondents. In the end, as a result, the Interlocutory Order was made that we have already referred to.What then happened was, as is clear, that the Respondents simply did not turn up at the hearing before the Industrial Tribunal. We have of course reminded ourselves what the position is before an Industrial Tribunal when a party fails to appear. It is quite clear that the Chairman and the lay Members must then exercise a discretion as to whether they should dispose of the application in the absence of the party, in this case the Respondent, or adjourn the matter to a later date. They must take all relevant factors into account in deciding whether to adjourn, or whether to hear the matter in the absence of the Respondent. It is perfectly obvious here, having regard to the Order which had been made just a day or so before, that the Industrial Tribunal were amply justified in exercising their discretion in favour of continuing to hear the matter in the absence of the Respondents. There was no explanation put forward before them of any kind for any non-appearance. The Respondents had allowed themselves to be struck out. The Notice of Appearance had been struck out. Therefore the Industrial Tribunal in our judgement were amply justified in proceeding to hear the matter in the absence of the Respondents.They then made their decision, I will come back to the decision later on, but it is important just to trace the matter through after that. There was then no application made for a review. One of the basic reasons why a review can be applied for is non-appearance. It was open to the Respondents to go under the Rules within the time limit, to have gone back to the Industrial Tribunal and once they had got the decision on 21 April, they could have gone and applied for a review. That step was not taken. Instead of that, this Notice of Appeal was put in, as we are satisfied it was put in, on 27 April 1995, signed by Mr Ellis, apparently filled in by the secretary, according to what we have heard from Mr Ellis today. Apparently completed in "block capital letters" by the secretary of BPS International Plc.The grounds upon which the appeal is brought are that the Industrial Tribunal erred in law, in that the decision was made in the absence of one party and the interests of justice require a review. We pause to state that that is a complete misconception of our position in this Employment Appeal Tribunal. This Appeal Tribunal is concerned to deal with arguable points of law. It is not concerned with reviews or re-hearings. It is not concerned, save in very exceptional circumstances, with whether fresh evidence of some kind or another should be admitted, and it is in the light of that background to the matter that we proceed to consider whether there is any arguable ground here at all for allowing this matter to proceed to a full hearing.We should say that we have had repeatedly placed before us today an explanation of a kind by Mr Ellis, who no doubt is attempting to explain the position to us rationally, to the effect that at some point after this decision was received, he went along to a Court in Willesden that appears a County Court, and waited a long period in that County Court. We pause simply to say we cannot understand that course of action, since he has shown us documents from which it is quite clear that the Industrial Tribunal were writing from the London (North) address on notepaper headed Industrial Tribunals, London (North) 19/29 Woburn Place, London WC1H OLU. There absolutely cannot have been the slightest doubt at any stage in the Respondents' mind as to the whereabouts of the Tribunal with which they were dealing.We then have to turn consider whether there is any arguable question of law. We note that today Mr Ellis has sought to put before us a considerable amount of documentation, designed to demonstrate that there never was any contract of employment with Mr Taylor, let alone any contract that he was to be employed at the rate of £550 per month. Although we have looked at that documentation, and although we agree that that documentation does tend to show that that is or may be the position, the fact of the matter is that we simply cannot treat this matter in any way as though it were a re-hearing. We regard our functions as limited to looking to see whether the decision on its face is a reasonable and proper decision. In so doing, we have concluded that the Industrial Tribunal have had evidence before them. It is apparent from their decision that there was evidence from Mr Taylor, the Applicant before them, upon which they were entitled to conclude, upon his oral evidence, that he was employed and that he was to be paid at the rate of £500 per month, and that he had not been paid.Those are clear findings of fact arrived at by the Industrial Tribunal in paragraph 2 of their decision. They are plainly based on evidence from one side only, admittedly, because of the history which we have already recited, but nevertheless evidence which was before them which they were entitled to accept from the Applicant. In those circumstances, for the reasons that we have stated, we must regard this application as being a belated attempt by the Applicants to upset the decision on the basis that there should be a re-hearing of the matter. The Applicant, in our judgement, had the clearest possible opportunity to put that case, the case which they now seek to place before us, before the Industrial Tribunal, at the appropriate time and in the appropriate manner. For reasons best known to themselves, they elected not to take that course and we regret that having made their bed in that way they must now lie on it. For the reasons that I have stated, we must dismiss this application.