GATEWAY PROFESSIONAL SERVICES (NUN-ROYD) LIMITED v MISS R FOSTER [1999] UKEAT 1227_98_0812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1227_98_0812Case No Appeal No. EAT/1227/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GATEWAY PROFESSIONAL SERVICES (NUN-ROYD) LIMITEDAPPELLANTMISS R FOSTERRESPONDENT
Before
Mr Justice LindsayDate 8 December 1999
[1]APPEARANCES For the Appellants THE APPELLANTS NEITHER PRESENT NOR REPRESENTED For the Respondent THE RESPONDENT NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : This is an appeal from the Registrar's Order debarring the respondent, Miss Foster from defending the appeal. Miss Foster's intended appeal relates to one topic only, unlawful deductions from her wages and the consequential question of whether or not a relatively small sum should be paid by Gateway Professional Services (Nun-Royd) Limited to Miss Foster. The sum concerned is £105.36. The attention which the case has required is entirely disproportionate to the very small sum at stake and it is to be deplored that the parties have neither disposed of the matter by consent nor, so far as concerns activity on Miss Foster's part, attended promptly to the matter in order either to compromise it or to pursue it. Looking at the chronology alone I would here refuse the appeal. But there is one factor which might make it unusually unfair not to let Miss Foster defend and that is this: On 3rd March 1999 the EAT allowed Gateway to proceed, out of time, with its appeal, but only if it satisfied two conditions. The Order that was made, in effect, provided that if those two conditions were not met then the appeal would automatically be dismissed. The second condition involved payment of a sum of money and it seems that that has been satisfied. So far as concerns the first condition, it was as follows:
"Within 14 days from today [ 3rd March 1999 ] the Appellants are to swear and file with the Employment Appeal Tribunal an affidavit dealing with the tax position of Miss Foster and the way in which her wages were subject to tax to include confirmation of this from the Inland Revenue."
The expression "to include confirmation of the this from the Inland Revenue" is not only found in the Order but also is to be found in the judgement of the then President, Morison J, given on that day, where on page 6 of the transcript, he says this:
"The condition to which I have referred is as follows, I will discuss with Mr Mackenzie in a moment the precise time, but broadly speaking, if the appeal is to go ahead, it is a pre-condition that Mr Mackenzie provided the Employment Appeal Tribunal within 14 days an affidavit dealing with the tax position of the Applicant and the way in which her wages were subjected to tax and confirmation from the revenue, which we were told exists, that the way tax was deducted from her wages was done in accordance with the tax system. This will give Mr Mackenzie the opportunity to deal with the matters which he says took him by surprise at the Industrial Tribunal."
[2]There was an affidavit lodged. It was an affidavit sworn on 16th March 1999 by Richard Mackenzie, Company Director, and purported to be filed in accordance with the Employment Appeal Tribunal's Order of 3rd March 1999. But it is at least arguable that nothing in it amounts to confirmation from the Commissioners of the Inland Revenue as was required by both the EAT's order and the passage in the judgment to which I have just referred. There is no confirmation from the Revenue specifically, relating to Miss Foster's tax position exhibited to that affidavit. Indeed, all that relates to tax in the affidavit are exhibits that set out the most general of guidance for employers and in relation, in particular, to new employees. So it is at least arguable that the affidavit did not comply with the condition. If that is the case, the appeal by Gateway may, when it comes for a hearing, have to be dismissed and it arguably is the case that it should have already been dismissed. In that circumstances, to bar Miss Foster from defending may bar her from defending an otherwise possibly hopeless appeal and may bar her from enjoying the fruits of a victory by default which may, properly understood, be hers already.[3]On that basis it seems to me to be unusually unjust to not permit her to defend Gateway's appeal. Accordingly, I set aside the bar presently against her. I will allow her to defend Gateway's appeal but the delays of the past really now should be put behind her. If, within eight days after receiving a copy of this transcript (by way of receipt by her solicitors) she has not entered a Respondent's Answer, then she will be automatically debarred from defending the appeal without further order. It would be wise for the EAT to send the transcript to her solicitors by fax so as to have an unassailable record of precisely when it was sent. I do not say that it should not be sent also in the ordinary course by post, but it would be wise to send a copy by fax to have a clear record of the moment of sending. If the Respondent's Answer is not received in time, then Miss Foster will be barred from defending Gateways' appeal without further order but if within the eight day period I have mentioned the Respondent's Answer is lodged at the EAT, then she will be in a position to defend in ordinary course.