STRUCTURAL SEALANT SERVICES LTD v MRS WILLIS [1999] UKEAT 715_99_1210

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 715_99_1210

Case No Appeal No. EAT/715/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

STRUCTURAL SEALANT SERVICES LTDAPPELLANT

MRS WILLISRESPONDENT

Before

Mr Justice Holland Mr R Sanderson

Date 12 October 1999

[1]APPEARANCES For the Appellants MR T CHADDAWAY (Director) MR JUSTICE HOLLAND: By an IT1 dated 6 November 1998 Mrs Shirley Willis made a complaint of wrongful dismissal from her employment with the company Structural Sealant Services Ltd. That complaint came on for hearing before an Employment Tribunal sitting at Stratford on 21 January 1999. Up to that day the employers, Structural Sealant Services Ltd had engaged the services of an organisation to represent them, that organisation being Peninsular Business Services. Peninsular Business Services on their behalf had submitted an IT3 such including grounds for resistance that appear at page 24 of out bundle. Turning to the day of the hearing, it transpires that Peninsular Business Services decided that they would not turn up. Further, it appears that they either did not let the Respondents know, or if they did let them know, did so at a very late stage. In the upshot the Respondents had to fax the Tribunal on the morning of the hearing asking for a postponement on the grounds that they had been let down by Peninsular. The Employment Tribunal had to exercise its discretion and in the event it decided that it would continue with the hearing not withstanding that the Respondents were neither there nor represented.

[2]The Respondents represented now before us by Mr Chaddaway, a Director, very realistically acknowledge that that was a not unexpected outcome given the very late stage at which there had been the request for an adjournment.

[3]Turning then to what happened in the absence of the Respondents it amounts to this. The Employment Tribunal heard the evidence of Mrs Willis and proceeded to make findings on the basis of such. Those findings culminated in paragraph 17 of the Extended Reasons that were sent to the parties on 28 April 1998. By that paragraph the Tribunal found:

"The Tribunal is unhesitatingly of the view that Mrs Willis was wrongfully dismissed. Although Mrs Willis admitted slamming a door and causing minor damage, the Tribunal does not consider that this was such a serious incident as alleged by the Respondent in its Notice of Appearance. The fact that it was not mentioned at the time Mrs Willis was told her employment was terminated is consistent with the incident being a relatively trivial one and not the true cause for her dismissal. Nor is the Tribunal able to find in the face of the evidence that there was an earlier incident with Mrs Willis kicking a toilet door for which she received a written warning. She was not guilty of gross misconduct. As Mrs Willis was not made any payment upon her dismissal, she is entitled to damages and some of the wages she would have been paid had her contract been lawfully terminated. The term agreed as to notice was one month notice on either side and accordingly damages must be assessed as on twelfth Mrs Willis's annual salary of £19,000 that is to say £1,583.33. The Tribunal is not satisfied that Mrs Willis does establish that she has not been paid what has been agreed and was due in respect of overtime. In any event, such payments arose in such period at the end of June 1998, and any such claim would be out of time. The promise of a bonus payment was far too vague and dependent on a number of contingency factors as to be regarded as giving rise to a contractual entitlement. Apart from overtime, no claim was made by Mrs Willis that there were wages due and unpaid at the time of her dismissal."

[4]In presenting his appeal to us the morning, Mr Chaddaway has sought to persuade us that at least one point of law, if not two points of law, arise out of this decision such as would justify sending the matter forward for an inter partes hearing. For our part we have listened very carefully to Mr Chaddaway. With some genuine reluctance having regard to the full circumstances and more particularly having regard to the way in which he has presented his arguments, we have to say that there is no point of law in this and this appeal must fail.

[5]Let us develop that finding as follows. The essential argument raised by Mr Chaddaway is as follows. Had his company been properly represented so as to be able to put forward its side of the case, then two arguments would have been advanced respectively based on evidence. The first argument would have been to the effect that summary dismissal without notice was wholly justified having regard to the circumstances that immediately preceded the decision to dismiss her. In essence he is submitting to us that the findings in that respect made by the Employment Tribunal were overly favourable to Mrs Willis and that had the full facts been in front of the Tribunal then it could not have conceivably have found that she was wrongfully dismissed. His second point is as to the assessment of the money in lieu of notice. He submits that had the Tribunal had the benefit of hearing evidence from the Respondent it would have concluded that the appropriate period of notice was not one month but one week so that the money in lieu of notice would have been not a month's income, but a week's income.

[6]We hope that the Respondents will accept that we listened to those arguments with care and some sympathy. That sympathy particularly flowed from a very unhappy way in which his company was let down by those who were purporting to represent them. It seems extraordinary that the matter was dealt with so as to leave it far too late for the Respondents to make some alternative arrangements. That said, once one accepts that this Employment Tribunal was justified in going ahead with the hearing in the absence of the Respondents then that which they found, in our judgment, becomes unchallengable. They were required by law to proceed on the evidence that was before them and that they did. Granted, that evidence would have been challenged, had there been a representation for the Respondents, but that was simply not the case on the day and on the day, the Tribunal properly dealt with the matter on the evidence and arrived at conclusions that were wholly sustainable by such evidence as it did receive.

[7]Thus it proceeded on the version of facts put forward by Mrs Willis and that it was entitled to do, and thus further, when it came to assessing the money in lieu of notice it proceeded on her contention that the appropriate period of notice was one month. We are bound to add indeed that given that she was on a salary a month's notice would have been that which would have been expected so that it would have needed some fairly cogent evidence to persuade the Tribunal that an alternative view should be taken in these circumstances.

[8]We hope Mr Chaddaway feels that we have done our best to look at the position from the point of view of his company, and we hope that he accepts that we really are sympathetic to the situations that arose on the day of this hearing. But we have also done our best to explain in the very limited powers that we have that we can only deal with this matter on the basis of wrong decisions as to law, and we are quite unable with our joint ingenuity to find any wrong decision on the part of this particular Tribunal sitting on this day.