REACT STAFFING AGENCY v MR G BENSTEAD [1999] UKEAT 224_99_2807

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 224_99_2807Case No Appeal No. EAT/224/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
REACT STAFFING AGENCYAPPELLANTMR G BENSTEADRESPONDENT
Before
Mr Justice MorisonLord Gladwin of CleeDate 28 July 1999
[1]APPEARANCES For the Appellants NEITHER PRESENT NOR REPRESENTED For the Respondent NEITHER PRESENT NOR REPRESENTED MR JUSTICE MORISON: This is an appeal from an Employment Tribunal Decision which was promulgated on 20 November 1998. By their Decision the Tribunal concluded unanimously that there had been unauthorised deductions from the Applicant's wages contrary to section 13 of the Employment Rights Act 1996. They ordered the Respondent to the complaint to pay to the Applicant the sum of £329.38. The Respondent is an organisation called React Staffing Agency, the Applicant is Mr Benstead. The summary reasons which the Tribunal gave for their Decision are that the Applicant attended the hearing and gave sworn evidence to the Tribunal, whereas the Respondent, that is React Staffing Agency, did not attend. In those circumstances they treated the Notice of Appearance as a written representation and took it into account when reaching their decision. They then set out in detail how they made their findings.[2]This is not a case where we have been impeded from dealing with this appeal by reason of the fact that the Decision is contained in what is headed Summary Reasons, because this is an example of a case where there is sufficient material before the Employment Appeal Tribunal to enable it to deal with the matter as it stands.[3]Essentially, the complaint made by React Staffing Agency is that they had communicated with the Employment Tribunal on 12 November, that is some few days before 18 November, saying that the person concerned in the Company who was dealing with the matter had a hospital appointment following on from a breast cancer operation which she had recently undergone. The date set out on the Notice of Discharge of Patient from Hospital form giving the follow-up examination on 18 November 1998 is before us and we have no reason to doubt its authenticity.[4]The principal of the Respondent firm, having communicated with the Employment Tribunal, was of the view that the case would not proceed and it was thus with some surprise that she received the Decision of the Employment Tribunal. The reason why she thought that what she said would be sufficient appears from the affidavit which she has been required to submit in this case, following a Preliminary Hearing in this matter. What she say is that she was due to re-attend the hospital for a check-up on 18 November and she produces the Notice of Discharge from the Pilgrim Hospital confirming the date of that check-up. She says this:
"On the 12 th November 1998 I faxed the Employment Tribunal at Nottingham the appointment confirmation slip with a hand-written note by me on the bottom of that slip confirming that I would be unable to attend the Tribunal hearing on account of my hospital appointment."
[5]She produces as exhibit 2 the fax confirmation sheet confirming successful transmission of her message to the Employment Tribunal. We have looked at that fax transmission confirmation sheet and it is plain on the face of it that the correct fax number was used and according to her confirmation sheet, her machine was given confirmation electronically that the receiving number was indeed the fax number of the Regional Office of the Employment Tribunal. It shows the date of 12 November and the time 12.13pm and the duration of 44 seconds. It shows that the transmission was completed and the result was recorded as OK.[6]She says in paragraph 4 of her affidavit that before faxing the confirmation slip, she had already spoken to the Employment Tribunal to be told that this course, by which we assume she means the course of sending a fax in the way that she did, was in order. "After faxing the slip referred to I did not give the matter any further thought and did not follow it up with the Tribunal. Having spoken to the Employment Tribunal already I took it that there was nothing further needed from me at this time. It was only later when I received notice of the decision of the Employment Tribunal that I realised that my application for postponement had not been granted." She makes the point that had she been afforded a reasonable opportunity to put her case at the hearing before the Employment Tribunal there are a number of matters which she would have wanted to put before the Tribunal as to the complaint of wrongful deduction from wages.[7]The Employment Appeal Tribunal dealt with this case at a Preliminary Hearing on 7 June 1999 and ordered the Appellant to file the affidavit to which I have referred within the specified timescale and that affidavit was duly transmitted to the Employment Tribunal by letter from the Employment Appeal Tribunal dated 14 July 1999 which was received by them the following day. By a transmission today, the Employment Tribunal with a hand-written note attached to the copy of letter sent from the Employment Appeal Tribunal said this:
"At the time this case came before the Tribunal at Lincoln on 18 November 1998 there was nothing to explain the absence of the Respondent. If the Tribunal had been aware of the Respondent's illness the case would have been postponed. It had been postponed from October and a new date of 18 November was notified by letter of 26 October. Nothing heard from the Respondent. No fax of 12 November is on file."
[8]It seems to us reasonably clear that there has been an administrative hiccup in relation to this case. It is clear that had the Employment Tribunal been given the information, which we have been provided with in the affidavit, they would not have proceeded to adjudicate in the absence of the person concerned, Ms Ladner, despite the fact that the case had previously had to be adjourned (which might well have been due, although we do not know, to her medical condition).[9]In those circumstances it is obviously right that there should be a rehearing of Mr Benstead's complaint. This is most unfortunate because of course so far as he is concerned, he has done nothing wrong. He has attended the Tribunal on the due date, given his evidence, had it accepted and had an award made in his favour. But it does seem to us that the interests of justice require that people should have an opportunity fairly to present their case which React Staffing Agency have not had in the circumstances outlined. We do not wish to criticise the learned Chairman or his lay colleagues for the way they dealt with this matter. It is not their fault that they were unaware of this fax transmission.[10]It is a fact that the Employment Tribunal has not responded to the point which is made in the affidavit that the correct fax number was used on this fax transmission report and that the facsimile machine of Ms Ladner had received the identification number from the Employment Tribunal which also is correct. One can wonder how it is that the fax in fact was never received by the Employment Tribunal. But be that as it may, this is a case where the interests of justice require that the matter should go to a newly constituted Tribunal for their determination of Mr Benstead's complaint.[11]Having regard to the delay in this case it would be desirable, if possible, for the Employment Tribunal to accommodate this case as soon as possible having regard to the parties' availability. Thus the appeal will be allowed and the matter remitted to a freshly constituted Tribunal for as early a determination as is practicable.