Bell v Baxter [1998] UKEAT 931_97_2107

EAT
Bell v Baxter
[1998] UKEAT 931_97_2107 · 1998-07-21

JUDGE J HULL QC :

Mr Baxter is a chef. He was first employed by Mr Bell, who is the Appellant to us, in the Vaults Restaurant in Paignton on 25 March 1996. His employment went on until 26 March 1997 and it must now be accepted, both from a decision of our own Tribunal, and of the Industrial Tribunal, that on 26 March 1997 Mr Baxter was wrongfully dismissed. Unfairness does not come into it because he had not qualified for the provisions of the Employment Rights Act 1996 , but he was entitled, of course, to complain of breach of contract. He had a contract, which is not in issue, under which said he was entitled to three months notice.Mr Baxter being dismissed made a complaint to the Industrial Tribunal. He made a claim for damages for wrongful dismissal. He gave particulars of his claim. There was a retort on 24 April in the form of a letter. Mr Bell wrote the letter of 24 April (page 4 of our bundle) to the Solicitors who were then acting for Mr Baxter. It was a letter which was mainly devoted to saying, "the claim as to liability is wrong, he was not wrongly dismissed by me, he simply went" and so on. All that has gone by the board. There cannot be any question of pursuing those contentions. But the letter went on:
"I know Neil [Mr Baxter] is now working as Head Chef at another catering concern and also aware that he worked over the Easter weekend elsewhere. Knowing this how do you think I felt having to close the Patio, [his own restaurant, another restaurant owned by Mr Bell] through lack of staff."
What had happened, said Mr Bell, was that he had transferred the chef from the Patio restaurant to the Vaults restaurant to avoid closing the Vaults restaurant.So that short contention, namely that Mr Baxter was already working again, was made in that letter. The letter was not only sent to the Solicitors for Mr Baxter but it was copied to the Industrial Tribunal. What did not happen was that Mr Bell did not fill in the IT3 form, as he should have done, and comply in that way with the Rules. To see the effect of that, one has to look at the Industrial Tribunal Rules.Under Rule 3 a Respondent is required - and Mr Bell was the Respondent - within 21 days of receiving the copy of the Originating Application to enter an appearance to the proceedings by presenting to the Secretary a written Notice of Appearance setting out his full name and address, stating whether or not he intends to resist the application and, if he does, setting out sufficient particulars to show on what grounds. And then a copy is to be sent to each party; that was not done.In due course, indeed very shortly afterwards on 20 June 1997, the Industrial Tribunal sat at Exeter. The Tribunal sat in the person of its Chairman, Mr Housego, alone, without industrial members and Mr Bell attended. He was two minutes late which left him, no doubt, somewhat put out, particularly as he was rebuked by the clerk for being late. But when he tried to take part in the hearing the Chairman said, "You have not entered an appearance and therefore", said the Chairman, "I have no right to hear you. You have no right to be heard" and the Chairman, on the face of it, might have been right because under Rule 3 (2) "A Respondent who has not entered an appearance shall not be entitled to take any part in the proceedings" and then certain exceptions are set out, which do not apply here. One of them which might have applied was that he could make an application for an extension of time for entering an appearance.So the Chairman might have been right, but in fact what the Rule requires is that a party shall enter an appearance, and the Rule does not say that that appearance is to be in the set form which is provided by the Rules, the IT3. That has had to be considered by our Tribunal on previous occasions and I will read from the notes to the Rule in Harvey which set out the true position. The notes say: "Appearance will usually be by the return of the form IT3, but its use is not mandatory and a letter will suffice provided it meets the requirements of Rule 3", that is stating the name and address and whether the application is to be opposed, and so on.Of those requirements, only the requirement of writing is mandatory. The other requirements are directory only and so a failure to provide adequate particulars will not render the Notice of Appearance invalid. There is a well known case cited as authority for that, Seldun Transport Services Ltd v Baker [1978] ICR 1035. The note goes on to say that "A notice will comply with this rule, even if it is lost in the post and not received" - but now the requirement is that it should be "presented", ie actually received.It appears that this letter was received by the Tribunal, and so the Tribunal was, whether through its clerical staff or through its Chairman, we do not know, in error in not treating this letter (to which I have referred) as being, at any rate, a rudimentary Notice of Appearance. Truly, what the rule is doing is combining two things. First of all, the Notice of Appearance is a document which shows that the Respondent has received the proceedings and, therefore, is on notice and will be expected to take part in them. Secondly, it is required to serve as what lawyers call "a pleading" and say what his case is. This letter did both those things. It said that the proceedings had been received and it set out, albeit in a somewhat contentious way, not inappropriately perhaps, what Mr Bell's case was. It did raise the question of Mr Baxter working during the period of notice to which he was entitled.What is the significance of that? The Tribunal should, in the circumstances, have treated that letter as being a Notice of Appearance and should therefore have allowed Mr Bell to take part in the proceedings as he wished to do. He has told us that his case is, and indeed it appears from the letter, that there are deductions which should be made from Mr Baxter's damages.On the face of it, a person who is wrongfully dismissed is entitled to damages which start out by being, as a maximum, the pay which he would have earned during the notice period, but if in fact he works during the notice period and earns money during that period, then there fall to be deducted from that sum his earnings during the notice period.Mr Baxter admitted, and has told us that he admitted, that he had worked for one week during the notice period and had then obtained employment on 17 June, before the end of the notice period and the Chairman, being told that by Mr Baxter, made the necessary deductions and said, "Very well" to Mr Baxter, "You shall have 11 weeks' pay, not 13 weeks". What is said by Mr Bell is that those deductions were inadequate. In fact Mr Baxter was working on other occasions during the notice period and he, Mr Bell, wished to put that before the Industrial Tribunal. He was, as we say, entitled to do that. Whether his case would have been accepted by the Industrial Tribunal, whether it would have made the slightest difference we do not know and it would be really quite idle to speculate. So there has been a mishap. The Chairman misconceived the position and wrongly prevented Mr Bell from being heard.In those circumstances, all we can do as an Appeal Tribunal, dealing simply with law, is to say that since that hearing was irregular there must be another hearing, inconvenient as it must be and time-wasting as it must be. And, of course, we cannot say what the likely result of that hearing will be.We remit the matter to be heard by another Tribunal because we think that Mr Housego, having reached a decision which is questioned in this way, may be embarrassed to reopen the matter and hear the matter, so we ask for another Tribunal to hear the case, a Tribunal differently constituted.The only part of the case on which Mr Bell can be heard now, by the Notice of Appeal; by what was said to our own Tribunal when the matter was before Judge Hicks QC and the other members of our own Tribunal; and to us; is in relation to this question of damages for wrongful dismissal. The other parts of the claim are not challenged and in those circumstances we remit the case solely for the purpose of deciding the question of damages, as envisaged by Judge Hicks.Therefore we allow the appeal to that extent and we remit the case. We would suggest (it is, of course, entirely up to the Industrial Tribunal to say how they try their case) that this is an appropriate case for a Directions Hearing. Mr Bell has apparently got a certain amount of evidence, apart from his own evidence, which he wishes to put before the Tribunal, it is not simply a case of wishing to cross-examine Mr Baxter and ask him questions about his claim.In those circumstances the Industrial Tribunal will probably wish to say that each of the parties should put their evidence in written statements and to say whether they are satisfied with the letter, dated 24 April, as an Answer or whether they think that Mr Bell should now supplement that by putting in an IT3, whether in the form which he has already envisaged or otherwise, within a fixed period. They already have Mr Baxter's affidavit. That could be used as a written statement, if they are content with that, but Mr Bell's evidence (they may wish to say) is to be reduced to writing, filed with the Tribunal and served on Mr Baxter, so that he can see exactly what is said by Mr Bell. Those are matters for the Tribunal. All we say now is that we remit the matter.If it should turn out that there is nothing whatever in Mr Bell's case and that he has, as it turns out, unnecessarily prosecuted an appeal and carried on his defence, so that the Tribunal finds there is nothing in it, then the Tribunal has, of course, certain powers with regard to costs which they may wish to exercise. There again, that is entirely a matter for the Tribunal and not for us.So to that extent, this appeal is allowed and we remit the case for hearing by another Tribunal.