Moodie (t/a Moodie Home Entertainments) v Scott [1998] UKEAT 175_97_1301

EAT
Moodie (t/a Moodie Home Entertainments) v Scott
[1998] UKEAT 175_97_1301 · 1998-01-13

JUDGE C SMITH QC :

This is an appeal by the Respondent employers before the Industrial Tribunal, Lloyd Moodie and Moodie trading as Home Entertainments, against the decision of the Industrial Tribunal sitting at London (North) on 2 January 1997, that -unauthorised deductions had been made from the Applicant before the Tribunal, Mr Paul Scott's wages and that the Respondent should pay him, Mr Scott, the sum of £300.Before the Industrial Tribunal, due to the failure of the Respondent to enter a Notice of Appearance, the application was listed as "Appearance not entered". Ultimately, a Notice of Appearance was served by the Respondent on the Industrial Tribunal some 3½ months out of time, as received by the Industrial Tribunal on or about 30 December 1996, a day or two before the hearing before the Industrial Tribunal.In accordance with Rule 3(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 this Notice was deemed to include an application for an extension of time. The Industrial Tribunal found, as a fact, that the Respondent was told that at the hearing on 2 January 1997 the Industrial Tribunal would decide whether or not the Notice of Appearance should be accepted out of time. Despite this, there was no appearance by anybody from the Respondents at the hearing before the Tribunal on 2 January 1997.In those circumstances, as appears from the decision of the Industrial Tribunal, they dealt with the issue as to whether they should accept the Notice of Appearance out of time as follows:
"He delivered a Notice of Appearance to the Industrial Tribunal on 31 December 1996 and was told that the tribunal would decide whether or not the Notice of Appearance should be accepted. We considered this aspect of the matter carefully. We came to the conclusion that the Respondent had ignored the application which was served on him by the tribunal and even if he was not then served with a blank Notice of Appearance form he had had plenty of time between the 17 August and 11 December to ask the tribunal for a form but for some reason chose not to do so. No explanation at all has been received at all for the delay of some 3½ months in the presentation of the Notice of Appearance and we therefore declined to validate the notice and continued to deal with the case as if it were Appearance not entered."
The Industrial Tribunal, as appears from their decision, then went on to consider the evidence given by the Applicant, Mr Scott, who did of course attend on the hearing which was in accordance with the case which he had set out in his IT1, namely that he had been employed by the Respondents as a Sales Manager from 20 May 1996 to 21 June 1996 at a salary of £120 per week. His evidence was that he had not been paid for the three weeks in June, save for a sum of £30. The Industrial Tribunal accepted his account and found, as a fact, that the Applicant had been told that he would not be paid because a customer had not paid the Respondent. Accordingly, the Industrial Tribunal made a declaration that the Applicant's claim was well-founded and ordered the Respondent to pay to the Applicant the sum of £330.By his Notice of Appeal and Skeleton Argument Mr Moodie takes three points, which he has amplified very courteously before us today, namely(a) the Industrial Tribunal failed to take into account certain facts and matters which he had sent to the Industrial Tribunal or spoken to Miss Brooks, the Regional Secretary, about;(b) the Industrial Tribunal should have validated his Notice of Appearance;(c) no reasonable tribunal, properly advised of the facts, would have come to the conclusion that unauthorised deductions had been made.In its judgment given by the this Employment Appeal Tribunal, on the occasion when leave to proceed to a full hearing was granted, the Employment Appeal Tribunal drew attention to the fact that the rules require before a decision can properly be taken, whether or not to accept a Notice of Appearance out of time, for a notice to be served upon the Respondent, calling upon him to show cause why an extension of time should be granted.It seems that no such notice appeared in the papers before the Employment Appeal Tribunal at that time. However, before us, at page 7 of the bundle, we have seen a letter from Miss Brooks, the Regional Secretary, to Mr Moodie dated 29 November 1996 which, in our judgment amounted to a notice to show cause within the rules. Despite this letter having been received by Mr Moodie and despite his having had notice of the hearing on 2 January 1997, Mr Moodie did not turn up before the Industrial Tribunal on that date to show cause as to why his Notice of Appearance should be accepted by the Industrial Tribunal, when it was so much out of time, and to seek leave accordingly.We have heard today from Mr Moodie to the effect that he thought it was sufficient for him to have explained the situation to Miss Brooks, the Regional Secretary, and to send documents supporting his case to her but, in our judgment, an employer must be taken to know that an important matter such as this must be dealt with by the Industrial Tribunal itself, not simply through the office.In this case, we repeat, Mr Moodie had received the letter of 29 November 1996 and the Industrial Tribunal found as a fact that he had been told that the Industrial Tribunal would decide, at the hearing of the date of which he had had notice, whether his Notice of Appearance would be accepted.In those circumstances, we consider it was incumbent upon him to attend upon the Tribunal to explain the situation and to show cause to the Tribunal, if he could, why his Notice of Appearance should be accepted out of time.Mr Moodie has emphasised to us that had he been able to put forward his case, the employers would have led evidence that Mr Scott was not a sales manager but a trainee; that he was not taken on at wages of £120 per week, but on the basis rather of an allowance of no more than £60 per week and, indeed, upon terms that he could come and go as he pleased and that he could sign on as well, if he wanted to.We do not find it necessary to consider these points in detail since, in our judgment, these are matters which should have been placed before the Industrial Tribunal at the proper time, namely on 2 January 1997, as part of an application for an extension of time in which to serve a Notice of Appearance, and are not matters which we can take into account at this Employment Appeal Tribunal.We are concerned only with the question of whether there has been any error of law in the approach of the Industrial Tribunal. However, we do note in passing that such an arrangement as that contended for by Mr Moodie, with respect to him, would not seem entirely consistent with the obligations he had undertaken in the agreement he made with the NTEC to provide training to Mr Scott.Mr Moodie also explained to us the personal and business difficulties he had had at the time and the fact that he had been let down by his bookkeeper, Mr Williams, to an extent. However, these are all matters which, in our judgment, should have been ventilated before the Industrial Tribunal on 2 January 1997.At the end of the day, in our judgment, the simple fact is that Mr Moodie failed to take the clear opportunity given to him, to seek to persuade the Industrial Tribunal, by appearing at the hearing on 2 January 1997, to accept his Notice of Appearance out of time. It was incumbent upon him, as an employer, to deal with Mr Scott's application in a business-like manner and make sure that he took steps necessary to enable him to put forward his case at the proper time, especially as this is a case where it is Mr Moodie's case, and always was his case, that this was a dishonest application by Mr Scott based on misrepresentations as to the true position. In such a situation, one would have expected an employer to respond in very good time. Instead, the Industrial Tribunal had to deal with the matter without any assistance from Mr Moodie and, in our judgment, the way in which they dealt with the matter cannot be faulted as being in any way wrong in law.Accordingly, this appeal must be dismissed.