Savill Freight & Transport Services Ltd v Butt [1998] UKEAT 70_98_0103

EAT

Savill Freight & Transport Services Ltd v Butt

[1998] UKEAT 70_98_0103 · 1998-03-01

MR JUSTICE BELL : This is a preliminary ex parte hearing in respect of an appeal by Savill Freight and Transport Services Limited against a decision of an Industrial Tribunal entered in the register on 17 December 1997, that after a hearing at London (South) on 28 October 1997 the Tribunal found that the Applicant, Mr Butt, had been unfairly dismissed by the Appellant company. It made an award of £3,870 in his favour.

Mr Butt was employed by the Appellant company as an HGV driver. His Originating Application dated 7 July 1997 alleged that he had returned to the Appellant's depot on the morning of Sunday 29 June 1997 from a trip to France. It alleged that the Transport Manager was upset at being called out on a Sunday morning, that there was a heated discussion and that the Transport Manager assaulted Mr Butt who called the police who arrested the Transport Manager. Mr Butt left and claimed constructive dismissal.

The Appellant company's basis of opposing his application, as appears from the Notice of Appearance and a letter which it wrote dated 22 August 1997, was that Mr Butt had assaulted the General Manager; that Mr Butt called the police, but that no charges were laid; that Mr Butt had a bad attitude, but nevertheless he was not dismissed. He just walked out.

Mr Butt attended the Industrial Tribunal hearing on 28 October 1997 but the Appellant company did not, so the Industrial Tribunal exercised its powers under Rule 9(3) to hear the application in the Appellant's absence, considering the company's Notice of Appearance and the letter to which we have referred. It found the facts to be essentially as Mr Butt alleged. It directed itself correctly as to the law relating to constructive dismissal. It found unfair dismissal and it made an award which, on the face of it, appears to be reasonably and properly calculated.

By its Notice of Appeal the company contends that the Tribunal was informed on 15 September 1997, six weeks before the hearing, that the Company and its representatives could not attend on the date fixed for the hearing, 28 October.

The Applicant alleged that he was assaulted, the grounds of appeals state, yet the police were in attendance and no charges were brought. The Applicant did not return to work. However, his contract of employment was never terminated as suggested. By its PHD form for this appeal the Company says:

"Assault alleged. However no charges. Police matter. Report sought and awaited. Respondent never dismissed. Employment not terminated."

Today Mr Clayton, who has appeared for the Company and to whom we are grateful for his submissions and assistance, has handed us a small file of letters which tells us more about correspondence between the Appellant company and the Industrial Tribunal in the lead up to the hearing. The letter of 15 September 1997 is written by Mr Savill who is a Director of what Mr Clayton has explained is the relatively small Appellant freight company. It is addressed to the Industrial Tribunal. It refers to the Notice of Hearing and continues:

"... I will be unable to attend on this day due to annual leave until 8th November 1997.

However after this date the key witness is away on a training course for two weeks. Therefore we have no availability to attend until December 1997."

That, of course, might involve the Industrial Tribunal hearing being put off for more than a month, so it was hardly surprising that the Regional Secretary of the Tribunals wrote back to Mr Savill, acknowledging his letter and continuing as follows:

"The Chairman has considered all you say and has balanced that against the desirability of bringing this case to a hearing without delay.

(s) :

(1) You have not stated (a) when your leave begins (b) why your leave cannot be rearranged (c) the dates of the training course which your key witness is attending and his/her name."

Mr Savill replied to that letter but, unhappily, he did not do so until 21 October 1997, which must have been about a month after he received the Industrial Tribunal's letter or, at least, after it arrived at his company's premises. It was only a week before the date fixed for the Industrial Tribunal hearing. In that letter of 21 October he explained that his holidays were booked to go abroad with his family on 26 October 1997 until 10 November 1997 and that his Transport Manager, whom we can see was a potentially important witness and whom Mr Savill described as the key witness was:

"... on a course for two weeks booked 10 - 21.11.97 and will be returning to work on 24th November."

To that letter the Regional Secretary of the Industrial Tribunals replied, on the Chairman's instructions, as follows:

"The Chairman has considered all you say and has balanced that against the desirability of bringing this case to a hearing without delay. Your request for a postponement is refused for the following reasons.

(1) Your reply comes too late in answer to questions raised in the Tribunal's letter dated 18 September 1997."

In order for this appeal to succeed it must raise an arguable point of law and the only point of law in this case must be that the Chairman reached a decision which no reasonable Chairman, properly directed, could possibly have reached in the exercise of his discretion in finally refusing the adjournment which was sought. In our view that argument is untenable. The final reason for refusing the adjournment was, in effect, the delay of the Appellant company in taking something like a month to give the details which the Industrial Tribunal had earlier asked for, and in giving them only about a week before the hearing date.

In those circumstances, it seems to us, that the Chairman was perfectly entitled to say, in effect, "I'm sorry, that is too late". Had the Company replied earlier to the Industrial Tribunal's letter dated 18 September 1997 explaining the difficulties over leave, perhaps the whole matter would have ended differently.

We are very grateful to you Mr Clayton for helping us and particularly, producing the letters which Mr Savill, no doubt, put in your hands, but for those reasons this appeal must be dismissed at this stage.