McCaul & Anor v Oliver Donnelly & Co Ltd [1997] UKEAT 1065_95_2901

EAT
McCaul & Anor v Oliver Donnelly & Co Ltd
[1997] UKEAT 1065_95_2901 · 1997-01-29

JUDGE PETER CLARK :

This is an appeal by Mr and Mrs McCaul against a decision of the London (North) Industrial Tribunal Regional Chairman dated 24 August 1995, dismissing their application for a review of the decision of the Stratford Industrial Tribunal (Chairman: Mr A Bano) dismissing their complaint of unfair dismissal in their absence on 17 July 1995. Summary reasons for Mr Bano's Tribunal decision are dated 8 August 1995.

Chronology of events

From 11 February 1990 until 26 November 1993, Mr and Mrs McCaul were employed as manager and manageress of the "Top O The Morning" public house in Hackney. On the latter date they were summarily dismissed following an allegation that one or both of them were responsible for substantial stock losses, a charge which they vehemently deny.Following dismissal they presented a complaint of unfair dismissal to the Industrial Tribunal on 24 February 1994. The originating application identified their representative as a London firm of solicitors, Edward Fail, Bradshaw & Waterson (Edward Fail), and gave the Appellants' home address as an address in the Republic of Ireland.On 29 March 1994 the named Respondent Company entered a notice of appearance, contending that there had been a transfer of the business in July 1993 and that it did not employ the Appellants at the date of dismissal.In April, May and August 1994 correspondence passed between the Industrial Tribunal and Edward Fail concerning joinder of a second Respondent, Gary Donnelly & Associates Ltd. On 31 August 1994 the second Respondent, acting through solicitors, Bishop & Sewell, entered a notice of appearance.The Appellants instructed Irish solicitors, Hughes & Liddy of Dublin, who on 13 February 1995 wrote on their behalf to Edward Fail, withdrawing instructions and asking for the file in order that they could instruct agents in England to continue to represent the Appellants' interests in these proceedings. No notice of change was then sent to the Industrial Tribunal.On 21 March 1995 the Tribunal sent notice of hearing to take place on 17 July to Edward Fail. It is accepted that Edward Fail received that notice.On 30 April 1995 Edward Fail demerged and the file was sent to Sopel & Co.On 9 May 1995 Hughes & Liddy made a complaint to the Solicitors Complaint Bureau requesting assistance in obtaining the file from Sopel & Co.Under cover of a letter dated 12 May 1995 Sopel & Co sent the file to Hughes & Liddy. The postmark on the package was either 12 or 17 May, according to the papers before us. It matters not which is the correct date because Hughes & Liddy say that the package did not arrive until 18 July, the day after the Tribunal hearing was listed to take place.On 17 July the case was called on before the Stratford Industrial Tribunal. The Respondents attended. The Appellants did not attend and were not represented. In the absence of any explanation for that non-attendance the Tribunal dismissed their application.Upon receipt of the file on 18 July 1995 Hughes & Liddy faxed the Industrial Tribunal, having discovered from the file that the case was listed for 17 July. Hughes & Liddy then instructed English solicitors, Judkin & Co to act on behalf of the Appellants. On 18 July 1995 that firm submitted what is described as a 'Statement of Appeal', effectively seeking a review of the Industrial Tribunal's decision made on 17 July.On 24 August 1995 the Regional Chairman dismissed the application for review. His reasons for so doing are set out in a letter of that date which reads as follows:
"Your letter dated 23 August 1995 and enclosure has been referred to the Regional Chairman, who has refused the application for review under Rule 11(5) of the Industrial Tribunals Rules of Procedure 1993 on the grounds that in his opinion it stands no reasonable prospect of success. Notice of Hearing on 17 July 1995 was issued on 21 March 1995 and the representatives were notified on 13 July 1995 that the hearing was listed for 2 days instead of 4 days. The Applicants failed to attend or to be represented at the time and place fixed for the hearing and the Respondent attended and was represented by his solicitors.
It was not suggested that the Applicants representative did not receive notice of the hearing date and they have their remedy against their representative."Against that decision the Appellants now appeal.

Industrial Tribunal Rules of Procedure

The Industrial Tribunal Rules of Procedure (the Rules) are contained in Schedule 2 to the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993. The material provisions are as follows:1. Service of Notices
"Rule 20(3) All notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraph (5)) or delivered to or at - (c) in the case of a notice or document directed to a party - (i) the address specified in his originating application or notice of appearance to which notices and documents are to be sent, or in a notice under paragraph (4),
...and a notice or document sent or given to the authorised representative of a party shall be deemed to have been sent or given to that party."2. Change of representative
"Rule 20(4) A party may at any time by notice to the Secretary and to the other party or parties ... change the address to which notices and documents are to be sent."
3. Application for review
"Rule 11(I) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that - (b) a party did not receive notice of the proceedings leading to the decision; (c) the decision was made in the absence of a party;
. ..(5) An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success.(6) If such an application is not refused under paragraph (5) it shall be heard by the tribunal which decided the case, or(a) where it is not practicable for it to be heard by that tribunal,(b) where the decision was made by a chairman acting alone under rule 13(8),

by a tribunal appointed by either the President or a Regional Chairman."

The Appeal

Mr Coppel takes two points in this appeal. It is convenient to take them in reverse order to that in which he presented them to us.First, the adequacy of the Regional Chairman's reasons as set out above. The letter of 24 August 1995 contains a "decision" within the meaning of regulation 2(2) of the 1993 Regulations. However, it is clear to us that they are summary reasons, permitted under rule 10(4). No application was made by the Appellants under rule 10(4) for extended reasons and none were obtained. Technically, therefore, there may be a breach of rule 3(1)(c) of the Employment Appeal Tribunal Rules 1993, in that a copy of extended reasons for the decision appealed against was not served with the notice of appeal. However, no point was taken by the Respondent under the Employment Appeal Tribunal Rules, and accordingly we feel able to deal with the appeal under our powers contained in rule 39(2) of the Employment Appeal Tribunal Rules to dispense with the need for extended reasons, provided we feel able to decide the substantive point in the appeal on the basis of summary reasons. See William Hill Organisation Ltd v Gavas [1990] IRLR 488 . We do feel able to do so, and it must follow that the Regional Chairman has, in our view, given adequate reasons for his decision. As to why we have reached that conclusion will become clear when we examine the substantive ground of appeal below.It is contended by Mr Coppel that the Regional Chairman failed to take into account the provision under Rule 11(1)(c) when considering the review application, but had in mind only rule 11(1)(b). Had he considered the rule 11(1)(c) ground for review he would, submits Mr Coppel, on the material before him have exercised his powers, not under rule 11(5), to summarily dismiss the application, but under rule 11(6) and sent the case to an industrial tribunal to hear the application for review.We think there are two answers to that submission. First, as Mr Miles puts it, the Regional Chairman, having satisfied himself that notice of hearing was served on the Appellants, through their nominated representative, Edward Fail, for the purposes of rule 20(3)(c)(i), and it not being suggested that the notice had not been received by those representatives, then the question arises as to whether any good excuse has been put forward for the Appellants' non-attendance on 17 July 1995. No good excuse was advanced. The fault lay with the Appellants or their advisers. Therefore, the application had no reasonable prospect of success. That reasoning is clear to us from the Regional Chairman's decision letter.Secondly, this case is distinguishable from the two Employment Appeal Tribunal cases on which Mr Coppel relies for his proposition.In Morris v Griffiths [1977] ICR 153 the respondent employer failed to attend the Industrial Tribunal hearing of which he had notice, he said, because he fell ill on the way to the Tribunal and had telephoned the Tribunal to tell them so. The case proceeded in his absence and the Applicant's claim succeeded. On the respondent's application for review, the Chairman dismissed it under what is now rule 11(5) on the basis that he did not believe the respondent's story. On appeal this Appeal Tribunal held that the Chairman ought not to have dismissed the application summarily under rule 11(5); he should have directed a hearing before an industrial tribunal to decide upon the veracity of the Respondent's excuse.In this case there is no factual issue to be decided as to the Appellants' excuse for non-attendance. Further, illness may be a good excuse. Here, the failure of either Edward Fail to notify the Appellants of the hearing date, or of the Irish solicitors to notify the Industrial Tribunal of a change of representation under rule 20(4) is not a good excuse for non-attendance. In that latter connection we observe that on 9 May 1994 Edward Fail sent to the Appellants a copy of a letter which they had sent to the London (North) Regional Office which gave the case reference number at the head of the letter. It would have been the simplest thing for these Appellants to have instructed their Irish solicitors as to the details of the case which they had before the Industrial Tribunal.Further on 7 July 1995 Edward Fail wrote to the Irish solicitors informing them that there was a hearing date due for July. There is no material before us, as there was no material before the Regional Chairman, to suggest that any enquiries were made by the Irish solicitors to find out precisely the date of that hearing before it was too late.It may be that the Appellants have a claim in negligence against one or other of those solicitors, as the Regional Chairman observed but whether or not they have a good claim against their advisers, it seems to us that the Regional Chairman was entitled to conclude, as he plainly did, that no good reason for the Appellants' non-attendance had been advanced.The second case is Hancock v Middleton [1982] ICR 416 . There, the Respondent, who did not attend the Tribunal hearing, claimed that he had not received notice of hearing and that the decision in writing arrived one month after promulgation. A Chairman refused his application for review on the grounds, first, that the application was made out of time, that is, more than 14 days after the decision was promulgated and, secondly, because it had no reasonable prospect of success.The Employment Appeal Tribunal allowed the employer's appeal. It held that there was material for an Industrial Tribunal to investigate, in particular, whether the Respondent had, in fact, received notice of hearing or not and whether he received the decision document too late to apply for a review within the ordinary 14-day time-limit. Thus, said this Tribunal, the case ought to have been dealt with under what is now rule 11(6) and not rule 11(5).We repeat, there is nothing here for the Industrial Tribunal to investigate. Edward Fail, as nominated representative, received notice. No reasonable excuse was advanced. The Regional Chairman, in our judgment, was entitled to take the view which he did. His reasons for taking that view are adequate. The appeal must be dismissed.