Ansari v Howes [1998] UKEAT 890_97_1906

EAT
Ansari v Howes
[1998] UKEAT 890_97_1906 · 1998-06-05

JUDGE PETER CLARK :

This restored ex parte preliminary hearing, adjourned by a division of this tribunal presided over by Judge Byrt QC sitting on 29th October 1997, was listed for hearing before us today.This morning a facsimile transmission was received from the appellant, Dr Ansari, signed on his behalf by L Robinson, in these terms:
"Dear Sir/Madam,
We write in regard to the above case listed for preliminary ex parte hearing today. Due to circumstances beyond our control we are sorry to inform you that Dr A. Ansari is unable to attend.Under these circumstances we are endeavouring to reach an agreement with Miss Howes to settle all outstanding issues without further recourse to the Appeals Tribunal and for this reason we request permission to withdraw from the Hearing listed today.We apologise for the delay in informing the Appeals Tribunals and no offence is intended to the Court by our absence.

We thank you for your time and attention to this matter."

It is unclear from that communication whether the appellant wishes to withdraw his appeal or to seek a further adjournment. If the latter, we decline to adjourn the appeal. No satisfactory reason is given for doing so. In these circumstances we have proceeded to consider the appeal on the papers before us.We begin with the history. At all relevant times the appellant was the proprietor of the Oakmore Nursing Home, Hayling Island. His private address is Coombe Farm, Oaks Road, Croydon, Surrey.The respondent to the appeal, Miss Howes, was employed by the appellant as a Care Assistant at the Nursing Home from 3rd August 1988 until her resignation effective on 30th September 1996. On 15th January 1997 she presented a complaint to the Industrial Tribunal that she was unfairly constructively dismissed. It was her case that certain overtime payments had been withheld, causing her to resign in response to the repudiatory breach of contract on the part of the appellant.The matter came before a Chairman, Mr I T Soulsby, sitting alone at the Southampton Industrial Tribunal on 23rd April 1997, at which the respondent appeared in person and the appellant was represented by Counsel. At that hearing the appellant was given leave to enter a Notice of Appearance out of time and the respondent was given leave to formally amend her form IT1 to identify her claims as being:

(i) unlawful deductions from wages; and

(ii) unfair dismissal by way of constructive dismissal.Since the outstanding wages had by then been paid the first complaint was dismissed on withdrawal by the respondent.Finally, the Chairman permitted the claim of unfair dismissal to proceed notwithstanding it was presented outside the primary limitation period, he having found that it was not reasonably practicable to present it within time and that it was presented within a reasonable time after the expiry of the three month limitation period.A Notice of Hearing was sent to the parties on 27th May 1997, fixing the substantive hearing of the complaint for 27th June 1997. The Notice was sent to the appellant at Coombe Farm, Oaks Road, Croydon, CR9 5AR.Prior to that hearing the respondent engaged the services of Mr Miller of Havant Citizens Advice Bureau.On 27th June the respondent appeared, represented by Mr Miller, before an Industrial Tribunal sitting at Southampton under the Chairmanship of Mr I A Edwards. The appellant did not appear and was not represented. The tribunal proceeded to hear the case, found that the complaint of unfair dismissal was well-founded and awarded compensation totalling £545.82. That decision, with extended reasons, was sent to the parties on 2nd July 1997 ["the substantive decision"].By letter dated 22nd July 1997 the appellant applied for the substantive decision to be set aside on the grounds that he was not served with Notice of the hearing. He stated:
"The Notice Papers were not received at the address Coombe Farm, Oaks Road, South Croydon and therefore I was not able to defend the action of the Plaintiff at the Industrial Tribunal."
The Industrial Tribunal treated that letter as an application for a review of the substantive decision and a review hearing was fixed for Monday, 6th October 1997.On 6th October the respondent again appeared with Mr Miller. The appellant did not appear, in circumstances which are set out in the tribunal's review decision reasons dated 7th October 1997.It appears that Mr Miller spoke to an unidentified employee of the appellant on Friday, 3rd October at about 12.30 p.m. She asked Mr Miller what paperwork he had and he said that he had nothing, except a letter from Dr Ansari dated 21 June 1997 which indicated that he knew of the hearing which was due to take place on 27 June 1997. The appellant's employee asked Mr Miller what her options were and Mr Miller said that she could either withdraw the application for a review or go ahead. She then told Mr Miller that she would consult Dr Ansari and get back to him. Mr Miller told her that the CAB Office closed on a Friday at 2.00 p.m.. He heard nothing further from her.On 3rd October a facsimile was received by the Industrial Tribunal, dated 2nd October, in which he informed the tribunal that he wished to withdraw from the hearing on 6th October. He wished to continue by way of appeal to this Appeal Tribunal.At the hearing on 6th October Mr Miller produced the letter dated 21st June 1997. It is headed "Coombe Farm, Oaks Road, South Croydon, Surrey, CR0 5HL". It is addressed for the attention of "Mr Miller" and it reads as follows:
"Dear Mr Miller,
We have recently received correspondence from Miss Sarah Howes regarding the above case.I am somewhat surprised that the case is to be heard on the 27th June as this would appear to be very short notice.In addition you may not be aware that I have previously sent a letter to A.C.A.S. offering Miss Howes a settlement in this matter.Although I continue to hold some doubts as t the validity of Miss Howes case particularly in light of the fact that she had previously been paid all outstanding amount in full I am willing to make a further offer of two hundred and fifty pounds in full and final settlement in order to bring this issue to a conclusion.This is due to the apparent extremely short notice of the case to be heard and in consideration of my current engagements. Unfortunately I do not have the time or resources to expend on this matter at the present time.Obviously I do apologise to Miss Howes for any distress she was caused during her employment at Oakmore Nursing Home and wish her well in any future employment.

Thank you for your attention to this matter."

The letter concludes with the words "Your sincerely p.p." and then an indistinguishable signature and the printed name "Dr A. Ansari".We have before us a letter from Royal Mail to the respondent dated 12th September 1997 which confirms that a letter which she wrote to the appellant on 19th June was delivered to Coombe Farm on 20th June. It is that letter, we infer, to which reference is made in the opening paragraph of the letter dated 21st June.The tribunal dismissed the application for review on withdrawal and ordered the appellant to pay the expenses incurred by the respondent, Mr Miller and her witness, Ms Furmedge in attending the tribunal on 6th October.A copy of the letter of 21st June to Mr Miller was sent by the Industrial Tribunal to the Employment Appeal Tribunal under cover of a letter dated 9th October. It was before the tribunal which sat on 29th October at the preliminary hearing.As we have indicated the preliminary hearing was adjourned for the purpose of allowing the appellant to swear an affidavit dealing with his contentions.He duly prepared and lodged an affirmation dated 11th February 1998 which is before us. We also have the Chairman, Mr Edwards' comments on that affirmation dated 16th March 1998.The question for us today is whether this appeal raises an arguable point of law to go to a full hearing. In practice that means is there any prospect of the appellant showing that he was unaware of the hearing held on 27th June? The answer, in our judgment, is 'no'.In his affirmation the appellant makes the following points. First, that he did not receive notice of hearing, we infer, for the substantive hearing on 27th June 1997. Apparently he attended the hearing before Mr Soulsby on 23rd April because he gave evidence on that occasion. (Summary reasons. Paragraph 40.) He contends that a Mr Fernando, a solicitor, was on record as his representative and expected that all correspondence would be sent to him. In fact we see that the Notice of Hearing dated 27th May 1997 is addressed to Dr Ansari at Coombe Farm, Oaks Road, Croydon, CR9 5AR. Mr Edwards confirms in his letter dated 16th March 1998 that the Notice of Hearing was not returned by the Post Office.In paragraph 7 of the affirmation the appellant says this:
"7. A letter was written by an employee who was under the impression that a hearing may be due to take place and subsequently wrote a letter which was most certainly not signed by me but was signed on my behalf."
Since the appellant has chosen not to appear before us today we have been unable to ask him about this part of his evidence. However we find it incredible that:(a) the Notice of Hearing dated 27th May, addressed to his home, did not come to the appellant's attention;(b) that the letter from the respondent dated 19th June, delivered to his home on 20th June, did not come to his attention; and(c) that an employee of his would read the respondent's letter, write to Mr Miller referring to the hearing date of 27th June and making an offer in settlement of the claim, wholly without reference to the appellant himself.We have reached a firm conclusion in this case and it is this. The appellant was well aware of the hearing fixed for 27th June 1997 but chose not to attend because it was inconvenient to him to do so. Having learned of the outcome of the hearing he applied to have the substantive decision set aside on the false ground that he had had no notice of the hearing. He has since prevaricated by first withdrawing his review application to the Industrial Tribunal at the last minute, and now by failing to appear, without good cause, at this restored preliminary hearing. This appeal is an abuse of the process and we shall dismiss it.