Cranbourne Catering Services Ltd v Reeve [1997] UKEAT 475_97_0412

EAT
Cranbourne Catering Services Ltd v Reeve
[1997] UKEAT 475_97_0412 · 1997-12-04
MR JUSTICE LINDSAY : We have before us by way of preliminary appeal the appeal of Cranbourne Catering Services Ltd in the matter Mrs A. A. Reeve against Cranbourne Catering Services Ltd.Cranbourne Catering Services Ltd is now in Creditors Voluntary Liquidation (I apprehend, certainly it is in liquidation) and Mr Whiting has appeared for the Company by its liquidator.There was a hearing on 15 January 1997 before the Industrial Tribunal at Bury St Edmunds (Mr M.F. Haynes, a Chairman sitting alone) a decision which was promulgated on 28 January 1997. The decision of the Tribunal was that:
"The applicant's [Mrs Reeve's] claim for breach of contract and wrongful dismissal is dismissed because the complaint was submitted outside the period of three months beginning with the effective date of termination and the tribunal is not satisfied that it was not reasonably practicable for the complaint to be presented within the appropriate period."
So that was a decision against the Applicant. And then the second paragraph:

"The applicant is entitled to a redundancy payment amounting to £1,260.00."

It is necessary to set out a little of the procedural history of the matter. On 17 September 1996 Mrs Reeve completed her IT1 form of Originating Application which was received by the Industrial Tribunal on 19 September 1996 and by that she made claim for redundancy pay, breach of contract and wrongful dismissal. I should mention that the time limits that need strictly to be observed vary from one type of case to another. The Respondent should have entered an Appearance within 21 days after receiving that IT1, but it seems that no appearance was entered. But there is a certain amount of confusion on the subject because certainly the Respondents, Cranbourne Catering Services Ltd, later claimed that there had been some appearance entered.But, in any event, there was a difficulty which the Industrial Tribunal itself spotted; it had doubts as to whether Mrs Reeve's complaints had been raised in time and on 11 November 1996, in order to allay or deal with those doubts, there was a notice of a hearing of a preliminary point sent to the parties. It specified as the date for the hearing 10 am on Wednesday 15 January. It said this:
"1. The hearing will be limited to consideration of the preliminary issue(s) set out below. You are responsible to ensure that all the witnesses you may wish to call, can attend on the hearing date.

The Preliminary issue is

(a) whether the application was presented within the 3 months time limit(b) if not, whether it was reasonably practicable for the application to have been presented in time(c) if it was not reasonably practicable, whether the application was presented within a reasonable period after the expiry of the 3 month period.2. Unless there are wholly exceptional circumstances, no application for postponement will be entertained if it is received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds."And that was sent both to the Respondent company and to Mrs Reeve or her advisers.But then, on 3 January 1997 (that is only, therefore, 12 days before the hearing) there was a Revised Notice of Hearing. That says this. It still specifies 15 January 1997. It still says that the hearing will be limited to consideration of the preliminary issue(s) set out below and that the Respondent was to be responsible, as was the Applicant, to ensure that "all the witnesses you may wish to call, can attend on the hearing date". But then, the nature of the preliminary issue is changed. It says this:
"The Preliminary issue on the Breach of Contract Claim is:
Whether the application was presented within the three months' time limit. In the event of the tribunal deciding it shall consider the complaint, the tribunal will proceed to hear the merits of the case."So the position was that, at all times after 11 November 1996, it had been specified that there would be a hearing on 15 January 1997 but, the nature of the business of that day changes as time progresses, because it starts off with the first preliminary issue and is then replaced by this second preliminary issue but with an indiscretion that the merits may be gone into.On 15 January 1997 the hearing went ahead with the result that I have already mentioned by way of the decision of the Tribunal. The respondent Company had not appeared; in paragraph 2 of the Industrial Tribunal's Extended Reasons it is said:
"The respondents have not entered an appearance and did not appear at the hearing."
Mrs Reeve gave evidence and, as to that, the Industrial Tribunal said:
"I heard evidence on oath from the applicant which I accepted in full. The applicant's employment was terminated on 29 March 1996 which is therefore the effective date of termination. The complaint was received by the Industrial Tribunals on 19 September 1996 - 5½ months after the effective date of termination."
In paragraph 8 they say:
"The applicant's claim for redundancy was of course made in time and I heard evidence from the applicant again regarding the circumstances of her employment. I accept that evidence in its entirety."
And at page 41 of our bundle, paragraph 10, the Chairman said:
"Having heard the evidence of the applicant I am quite confident that there were no breaks in her service, and that she has continuity of employment for the purposes of calculating a redundancy payment from the commencement of her employment in March 1987. She is therefore entitled to a payment based on nine full years. She was born on 9 November 1964."
Going on to paragraph 11:
"I accept the applicant's evidence that her average weekly pay for the 12 weeks prior to 29 March 1996 amounted to £212.05. This entitles her to the maximum payment under the Act of £210.00."
In that way the figures that I earlier recited, as part of the decision, came out.On 3 February 1997 there was a Notice of Appeal by Cranbourne Catering Services Ltd (then, I think, not in liquidation). Paragraph 6 of the Notice of Appeal is left blank but there is an explanation of what the intended grounds were by way of a letter and attachments, including an affidavit of Ian Angus White.The complaint here is that 14 days notice was not properly given under Regulation 5(1) of the time and place of the hearing. The Regulation reads as follows:
"(1). The President or a Regional Chairman shall fix the date, time and place of the hearing of the originating application and the Secretary shall send to each party a notice of hearing together with information and guidance as to attendance at the hearing, witnesses and the bringing of documents, representation by another person and the making of written representations.
2. The Secretary shall send the notice of hearing to every party not less than 14 days before the date fixed for the hearing, except [and then there are two exceptions, neither of which applies here]. "But the position here is that there was more than 14 days notice of the hearing, namely that there would be a hearing on 15 January, because that was prescribed as early as 11 November 1996. There had been no request, in the interval between 3 January 1997 and 15 January 1997, for an adjournment of the hearing. It was not said that there should be no full hearing on 15 January, either before then or on the day itself. As I indicated earlier, no one attended on behalf of the Company. There was no contact by letter, phone or fax. It was not claimed by the Company in that interval or on the day itself that surely in the circumstances only a preliminary point should be dealt with and not the full hearing.It will be remembered that the revised notice of hearing of 3 January indicated that the Industrial Tribunal might go on to hear the full case. There is no evidence of there having been any suggestion, on the Company's part, that it could not cope with a full hearing on 15 January and that, therefore, although a preliminary point could be heard, that the full hearing should not have been heard. I reiterate that no one attended on 15 January and there was no contact in the interval between 3 January and 15 January.In those circumstances we do not find that there was a breach of the rule. The rule requires notice of the date, place and time, all of which had been stipulated as early as 11 November 1996. Had the Company taken the trouble to make a case that it could not cope with a full hearing on 15 January and had it attended or even sent a fax or letter or phone call to that effect, different considerations might have applied, but there was no such contact and in those circumstances we do not see that this procedural ground which is relied upon provides any substance for interfering with the decision of the Industrial Tribunal. Moreover, looking at the decision of the Industrial Tribunal beyond that procedural point, but looking to the substance of it, we have been able to detect no error of law and accordingly, we dismiss this appeal.