Malik & Malik (t/a Applegates) v Howells (Deceased) [1998] UKEAT 1119_97_0603

EAT
Malik & Malik (t/a Applegates) v Howells (Deceased)
[1998] UKEAT 1119_97_0603 · 1998-03-06
MR JUSTICE BELL : This is an ex-parte preliminary hearing in respect of an appeal against the decision of an Industrial Tribunal held at Stratford on 11 July 1997. The Industrial Tribunal unanimously decided that the Applicant, Mrs Howells, who had by then died and whose Originating Application was being carried on by her administrator for the benefit of her estate, was entitled to be paid a redundancy payment of £1,343.65p by the Respondents, the present Appellants.The case was originally due to be considered at a preliminary ex-parte hearing on 12 January 1998. On that date a letter dated 12 January 1998 on the notepaper of Applegates, which is the trading name of Mr and Mrs Malik, addressed to the Registrar, was put before the panel of the Employment Appeal Tribunal reading as follows:
"I am so sorry that I cannot come on the hearing of this case because of ill health. I enclose herewith a letter from Emergency Doctor.

Please grant me another date of hearing of this case."

It was signed "M.A. Malik"

The panel of the Employment Appeal Tribunal, sitting on 12 January, considered that letter and adjourned the appeal to a date to be fixed. Today, 6 March 1998, was fixed for the adjourned hearing. We have been handed a further letter on Applegates' notepaper dated 6 March 1998, again signed by Mr Malik, reading as follows:
"I am not feeling well and unable to travel to your office this morning, later on my wife will take me to my G.P.
Because of ill health I want to make request to adjourn this hearing which is set up today at 10.30 am.

Thanks a lot and let me [know] new date of hearing."

We have before us the Notice of Appeal. We have the Industrial Tribunal's decision. In the light of the terms of the decision and the Notice of Appeal, as we will explain, we cannot see that any merit in the appeal could be shown, even if Mr Malik was here; but whether or not we are right in forming that view, it is essential to the proper administration of justice, in so far as Industrial Tribunal business and Employment Appeal Tribunal is concerned, that appeals are brought on promptly. They cannot be continuously adjourned. On two occasions now very late notice of alleged ill-health has been given.There is nothing in the letter dated 6 March 1998 to suggest that Mr Malik's ill-health today, if, indeed, such it be, has come upon him suddenly so that he could not communicate with the Registrar earlier than he has done. Justice works both ways with regard to both sides in any dispute and, having balanced all relevant factors in the matter, we propose to proceed with the preliminary hearing in the absence of Mr and Mrs Malik.The facts of the case happily are relatively simple and were clearly covered in the Industrial Tribunal's decision, entered in the register on 23 July 1997, with summary reasons as follows:
"The Applicant, Mrs Howells (deceased), was employed by the Respondent as a Senior Night Care Assistant from October 1990 until 21 June 1996 when Applegates Nursing Home closed down. Mrs Howells, through her personal representatives, claims that she is entitled to a redundancy payment."
The reasons then rehearse the provisions of section 139 (1) (a) of the Employment Rights Act 1996 before going on to say:
"Mr Malik told us in his evidence that following staffing and other difficulties he closed down on Applegates on 21 June 1996. He gave Mrs Howells a P45 and told her that when the home reopened he would contact her again. Mrs Howells was redundant within the meaning of section 139(1)(a)(i).
It is the unanimous decision of the Tribunal that Mrs Howells' estate is entitled to be paid a redundancy payment by the Respondent, calculated in accordance with section 162 of the Employment Rights Act 1996."The Tribunal went on to consider admissible evidence about what Mrs Howells had earned in the past. It made a calculation upon the correct basis and concluded that it was its unanimous decision that Mrs Howells' estate was entitled to be paid a redundancy payment in the sum which we have previously given.The Notice of Appeal sets out the following grounds:
"... that the industrial tribunal erred in law in that:
(1) Miss Howell gave me words that she is going to withdraw this case and she told me that she had written to Industrial Tribunal for it.(2) Miss Carol Howell agreed to work somewhere while the re-furbishment work done.(3) She was part-time worker.

(4) She has to pay NIC and Tax totalling £632.08."

That was then signed with initials which look to us the same as the signature on the two letters with regard to Mr Malik's health, to which we have earlier referred.It may be that the fourth point will entitle Mr and Mrs Malik to some reimbursement from another source in due course, but that is not a material point on this appeal. The first three points do not raise any arguable point, let alone a point of law, on the appeal.In our view the Industrial Tribunal considered all the matters it was relevant to consider, reached findings it was entitled to reach, and a conclusion and assessment of the appropriate payment which it was entitled to reach on the material before it.We cannot see any prospect whatsoever of this appeal succeeding and we are bound to say that it frankly has no merit and we therefore dismiss it at this stage.