Second Image Ltd v Watkins & Anor [1997] UKEAT 196_97_1211

EAT

Second Image Ltd v Watkins & Anor

[1997] UKEAT 196_97_1211 · 1997-11-12

MR JUSTICE LINDSAY : We have before us a preliminary appeal by Second Image Ltd. We have heard Mr Shah, who is a director of Second Image Ltd, to represent that company.

There is a little history to this matter that needs to be explained. Miss A J Watkins, who was the Applicant below, made an originating application in form IT1 that was received by the Industrial Tribunal on 9 February 1996 and her complaint was against two companies, Second Image Ltd and Gladbeck Ltd. Miss Watkins claimed that she had been told that Second Image Ltd was running the shop in which she had previously been employed. She was told that there had been a transfer by Gladback Ltd, the second Respondent, to Second Image Ltd. That was what she understood the case to be. Whether that was true or not, it was what, at all events, she understood.

There was a response to that IT1 in the proper form, IT3, by Second Image Ltd on 27 February 1996 and Second Image Ltd then claimed it was merely a licensor to Gladbeck and that after Gladbeck had ceased trading it, Second Image Ltd, had traded with its own stock and that, therefore, there was no proper claim against Second Image Ltd by Miss Watkins.

On 9 May 1996, at a hearing at which Second Image Ltd did not bother to attend, the Industrial Tribunal held that Miss Watkins had, indeed, been unfairly dismissed, which was her complaint, for a reason connected with pregnancy and that, therefore, discrimination had been established. I emphasize that Second Image had failed to attend.

The quantum was left over to a later hearing and on 5 November 1996 there was a second hearing at the Industrial Tribunal where the unanimous decision of the Tribunal was that the first Respondent, Second Image Ltd, was liable to pay the Applicant, Miss Watkins, £1,441.60 compensation, comprised of £1,337.03 for sex discrimination and £104.57 basic award for unfair dismissal for a reason connected with pregnancy and they ordered payment accordingly.

Again, the position was that Second Image Ltd had failed to attend. As to that, the Industrial Tribunal said this in paragraph 2:

"Today's hearing on compensation was listed to start at 10.00 am. The respondents did not attend and did not send in written representations. We waited until 10.30 am to give them an opportunity to arrive and then decided to proceed in their absence. We know that they are aware of the hearing as we have received correspondence from them since sending the notice of hearing."

Accordingly, the Industrial Tribunal, in Second Image's absence, went ahead and heard evidence and concluded as I have just read.

The next stage was that on 12 December there was a notice of appeal received or at any rate so dated by the sender but the Appellant there described was not Second Image Ltd, which had been the party down to that date, but Second Image (Retail) Ltd. Not surprisingly, the EAT responded on 24 December, writing to Mr Shah at Second Image (Retail) Ltd (and Mr Shah has told us that he is a director of that company as well) saying, in effect, that Second Image (Retail) Ltd could not appeal because it had not been a party in the first place and that the proper Appellant, if there was to be any Appellant, was Second Image Ltd.

On 31 December, accordingly, Second Image Ltd wrote to the EAT and asked could they have a copy of what they called "the necessary paperwork for the notice of appeal" and on 10 January, having no doubt been sent a form, they returned an EAT form 1 notice of appeal and this time the Appellant was described as Second Image Ltd, which is a body which could appeal the decision of the Industrial Tribunal. They wrote a letter claiming, no doubt quite rightly, that Second Image Ltd was a different legal entity from Second Image (Retail) Ltd.

The second notice of appeal is virtually identical to the first, save that it is Second Image Ltd rather than Second Image (Retail) Ltd that is described as the Appellant and that second notice of appeal was sealed as accepted by the Industrial Tribunal on, it would seem, 27 February 1997. It is that form of notice of appeal that is the only matter before us.

Second Image Ltd now claims that the decision of the Industrial Tribunal was one that, having regard to the facts which Second Image Ltd now wishes to adduce, is a decision which could not properly have been arrived at.

However, the Employment Appeal Tribunal does not provide some sort of action replay opportunity for those who fail to attend and give evidence at the Industrial Tribunal. We look only to see whether there has been an error of law. To demonstrate that there was an error of law Second Image Ltd would have to show on the particular facts of this case that no reasonable Industrial Tribunal, acting upon the evidence which this Industrial Tribunal, in fact, heard, could have come to the conclusion that they came to on 5 November 1996. But one cannot prove that by seeking to adduce totally new evidence that was not put in front of them at the time. It seems to us that no error of law is demonstrated whatsoever in the decision of 5 November 1996. If Second Image Ltd had bothered then to turn up and if Second Image Ltd had then bothered to adduce the evidence which it now seeks to adduce, who is to say there might have been a different conclusion? But that is not any ground for an appeal. There has to be a fault in the process of the Industrial Tribunal on the material then put in front of it. As to that, Mr Shah has shown us no error and we must, therefore, not only not allow this matter to go to a full hearing but must dismiss it as an appeal here and now.