Watts v Robinson [1999] UKEAT 881_98_0101

EAT

Watts v Robinson

[1999] UKEAT 881_98_0101 · 1999-01-01

HIS HONOUR JUDGE CLARK: These are five appeals by Mrs Watts against various orders and decisions made by Employment Tribunal Chairmen in cases brought by her former employers, Mrs Currie and Mrs Robinson.

The Complaints:

(1) By an Originating Application presented to the Leeds Employment Tribunal on 18 December 1997 (Case Number 1805567/97), Mrs Currie alleged that she had commenced employment with Mrs Watts at her Nursing Home in Driffield, East Yorkshire as a Care Assistant on 4 November 1997. She was not happy working there and left on 8 November 1997. Her claim was for wages earned, but not paid, during that period; 28 hours @ £3.00 per hour = £84.

(2) By her Originating Application presented on 23 January 1998, (Case Number 1800282/98), Mrs Robinson brought a similar claim in relation to wages earned by her but not paid during her short employment at the home on the night of 20, 21 November 1997. Her claim was for £45 unpaid wages plus £6 expenses (taxi fares).

The defence:

By her Notices of Appearance, the Appellant raised the same defence to each Applicant's claim of unlawful deductions from wages. She contended that both Applicants left without giving two week's notice of termination in writing, which she alleged was their contractual obligation.

Procedural History:

Mrs Currie:

We begin with the case of Mrs Currie. On 15 January 1998, a Notice of Hearing was sent to the parties listing the matter for hearing on 20 February. By letter of 19 January the Appellant wrote to the Tribunal requesting a postponement citing "operational matters connected with the Nursing Home together with an already planned holiday immediately thereafter". She requested that the hearing be postponed to a date after 19 March. That request was refused by a Chairman by letter of 22 January explaining that "operational reasons was not an adequate reason for a postponement" but inviting the Appellant to explain more about these reasons and why the Tribunal hearing could not be afforded priority

By letter of 3 February from the Appellant to the Tribunal, a further request for a postponement was made. Again, citing operational reasons but not giving any details, other than saying that these were in respect of confidential matters which she maintains that she was not at liberty to disclose, but again requesting a postponement until after 19 March. This was refused by letter of 4 February by a Chairman.

By letter of 5 February addressed to this Employment Appeal Tribunal and copies to the Employment Tribunal, it was confirmed that a request was made to the EAT for a form for appealing. A further request was made for a postponement of the hearing scheduled for 20 February, again citing operational reasons but giving no other explanation.

A further letter was sent to the Tribunal by the Appellant dated 6 February, notifying the Tribunal that an appeal had been lodged against the decision to refuse the application for postponement, such appeal having been lodged at the EAT, and again giving the 19 March as the date after which the Appellant would be available for a hearing. This was refused by a Chairman by letter of 11 February.

By letter of 16 February addressed by the Appellant to the Tribunal, she notified a change of address for correspondence and that her representative thereafter would be Mr Michael Easingwood-Wilson.

By letter of 17 February, the Appellant wrote to the Employment Tribunal, again requesting a postponement but again simply giving operational reasons as the reason for the application and confirming that an appeal had been lodged with this Tribunal. Again, a date after 19 March was requested. That request was refused by a Chairman by a letter dated 17 February.

By letter dated 18 February from Mr Wilson addressed to the Tribunal, a further request for postponement was made and he stated that an appeal had been lodged with the EAT. Again, a date after 19 March was requested.

By letter dated 19 February from the Tribunal to the Appellant, a Chairman's Order was recorded confirming that no further judicial decision could be made with regard to the application for postponement simply on the basis of "operational reasons" and further noting that Notice of Appeal to the EAT has not been produced as evidence of such an application. Evidence of the appeal was subsequently lodged at the Tribunal by fax of 20 February 1998. Still no details were given as to the operational reasons. In view of the appeal to this Tribunal, a postponement was then granted.

A further Notice of Hearing was issued on 2 March, indicating a hearing on 15 April. This was at a stage when no indication had been given that this date was unavailable to the Appellant.

By letter of 3 March, a request was received from Mr Wilson asking for a postponement of the hearing on 15 April citing operational reasons, giving no details and giving three suggested dates for a hearing, adding that the Appellant would not be available from 6 April until the beginning of May 1998, again for operational reasons. This request for a postponement was refused by a Chairman and confirmed by letter dated 6 March.

A further letter of 5 March was received from Mr Wilson making a request for a postponement of the hearing on 15 April, again citing operational reasons. This was refused by a Chairman by a letter of 10 March. A further letter was written by the Tribunal to Mr Wilson on 26 March at the instruction of the Regional Chairman who said:

"This is a claim for non-payment of wages of £84. It was presented on 18 December 1997 and should be dealt with sooner rather than later. The matter will go ahead on 15 April 1998 because no good reason has been advanced for postponing that hearing. It is fanciable to suggest that the Respondent (Mrs Watts) cannot be more specific about her "operational reasons". Subsequently, by fax of 14 April, a copy of an appeal to the EAT, that is the first appeal

EAT/880/98

before us, was sent to the Employment Tribunal by the Appellant. By letter of 14 April, it was confirmed to him that the matter would proceed. Accordingly the substantive hearing of Mrs Currie's case took place on 15 April.

Mrs Robinson

Turning now to the case of Mrs Robinson, a similar pattern emerges. A Notice of Hearing in that case was sent on 10 February listing the case for hearing on 19 March. The Appellant wrote on 16 February requesting a postponement. Again, by reason of "operational matters". This was refused by a Chairman by letter of 17 February. In that letter he stated:

"The request for a postponement is refused. Operational reasons, the nature of which are not specified, is not an acceptable ground for a postponement. Tribunal proceedings are judicial proceedings which should be afforded priority over other matters, particularly when those matters are not explained."

A further request for postponement was received by letter dated 22 February and refused by the Tribunal's letter of 26 February. On 4 March the Appellant's representative, Mr Wilson, notified the Tribunal that he was representing the Appellant and again requested a postponement of the matter for operational reason until after 19 March and referred to the case of Mrs Currie.

The application was considered by a Chairman, refusal of the postponement request was notified by letter of 6 March. However a decision was made by the acting Regional Chairman to the effect that the two matters should be heard on the same day and as a result, both cases were listed for hearing on 15 April. Notice of that hearing date was issued on 13 March. By letter of 25 March from Mr Wilson to the Tribunal, a request was made for that revised relisted hearing date to be postponed, again citing only "operational reasons". That was refused by a Chairman and notified to the Appellant's representative by letter from the Tribunal dated 26 March 1998. Against that order, the Appellant brings her second appeal,

EAT/881/98

Nothing then was heard from the Appellant until by fax of 11 April, Mr Wilson wrote to the Tribunal saying that the Appellant was not able to be present at the hearing on 15 April for operational reasons and requested a further postponement of that hearing, indicating that if any decision were made that did not go in the Appellant's favour, that would be the subject of an appeal to the EAT. He also said that the Appellant had lodged an appeal to the EAT against the non-granting of the postponement of the hearing scheduled for 15 April in Mrs Robinson's case. Subsequently a copy of that Notice of Appeal was received by the Tribunal on 14 April. However, a Chairman determined that the matter should proceed on 15 April and that case was also heard on that day.

Substantive Decisions :

On 15 April 1998, a Chairman, Mr D J Latham, sitting alone at the Hull Employment Tribunal heard both claims. Mrs Currie appeared in person; Mrs Robinson did not appear but sent a letter enclosing documents relating to her case. Mrs Watts was neither present nor represented.

Currie

By a decision with extended reasons dated 13 May 1998, the Chairman found as a fact that at no time were any written particulars of terms of employment nor a written contract provided to the Applicant. She was not notified of, nor did she agree to give 2 week's notice of termination, nor did she agree 2 week's pay in lieu of notice could be deducted from wages earned, which the Chairman found totalled the £84 claimed.

Applying the provisions of Section 13 and 14 of the Employment Rights Act 1996 (ERA), the Chairman concluded that there had been an unlawful deduction from wages and awarded the Applicant £84. Against that decision, Mrs Watts has appealed (

EAT/879/98

Robinson

By a decision with extended reasons dated 15 May 1998, the Chairman found that there was no evidence to support Mrs Watts' contention that this Applicant had agreed in writing to give 2 week's notice of termination and to the deduction of two week's pay in lieu of notice from any wages earned, in this case £45. He awarded the Applicant that sum plus £6 expenses, in relation to taxi fares incurred at the request of Mrs Watts, a total of £51.

Against that decision, Mrs Watts has also appealed (EAT 878/98).

Review

In the case of Mrs Robinson, Mrs Watts applied for a review of the substantive decision on 26 May 1998. The grounds for review were:

(a) that the case was heard before the appeal against the postponement order (881/98) was heard by the EAT.

(b) the case was heard in the absence of Mrs Watts or her representative.

By a decision dated 12 June 1998 (the review decision), Mr Latham refused that application under Rule 11(5) of the Employment Tribunal Rules of Procedure on the grounds that it had no reasonable prospect of success. Against that review decision, Mrs Watts has brought her fifth appeal (EAT 1078/98).

The Appeals:

All five appeals have been listed before us today for ex-parte preliminary hearings. Notices of Hearing were sent to the Appellant in each case on 10 September 1998.

By a fax dated 15 January 1999, the Appellant applied for an adjournment on the ground that she was suffering from influenza. Her representative was also said to be unavailable as he was suffering from the same virus and a severe arm injury caused by a fall on ice, triggering a pre-existing cervical spondylosis problem. Medical certificates were submitted. I was not prepared to grant the adjournment in view of the history of these matters and directed that the Appellant submit written representations. That was done by fax on 19 January, enclosing a skeleton argument dated 17 December 1998.

The skeleton argument deals with all five appeals. We have also taken into account the individual Notices of Appeal.

We shall similarly deal with the appeals but under various heads.

Postponement (Appeals 880/98 (Currie), 881/98 (Robinson)

We have related the procedural history in detail as set out in the respective substantive decisions made by Mr Latham.

The only reasons for the postponements sought were " operational reasons".

We remind ourselves that we can only interfere with a Chairman's exercise of discretion where it is shown to be wrong in law. Bastick v James Lane

(1979) ICR 778

, approved by the Court of Appeal in Carter v Credit Change Limited

(1979) ICR 908

, 918F (per Stephenson LJ).

In our judgment, the Appellant was given every opportunity to attend before the Tribunal and advance her case. It was open to the Chairman considering the applications for postponement to conclude that merely to recite operational reasons without more was simply not good enough. In any event, each case was postponed as a result of the postponement appeals made to this Tribunal. It was high time these modest claims were heard. In our judgment there are no grounds in law for interfering with those orders and we dismiss those two appeals.

Substantive Decisions (879/98 (Currie), 878/98 (Robinson)

The first point taken on behalf of the Appellant is that Mr Latham ought not to have proceeded to hear and determine these cases on 15 April 1998 when the two postponement appeals were pending before the EAT. Had we thought that those appeals were arguable, we should have allowed the substantive appeals to proceed to a full hearing. However, we do not, and accordingly we dismiss these grounds of appeal against the substantive decisions.

Next, objection is taken to the substantive hearings being before a Chairman sitting alone, rather than a full Employment Tribunal. By Section 4(2) and (3)(c) of the Employment Tribunals Act 1996, complaints of unauthorised deductions from wages may be heard by a Chairman alone. We see no good reason why that should not happen in these cases. Accordingly, this ground of appeal fails.

Looking at the relevant Notices of Appeal, it is said in the case of Mrs Robinson, that the Wages Act is not applicable in her case. In both cases, it is further said that the Employment Tribunal has "no authority to usurp any of the conditions of engagement which includes the method and period of notice required by all employees".

As to the first of those points, it is right to say that expenses are not within the definition of "wages" for the purposes of an unauthorised deduction claim (ERA Section 27(2)(b) ). However, on the Chairman's finding that Mrs Robinson incurred the taxi fares at the Appellant's request for the purposes of her employment, she had a contractual claim to reimbursement of those expenses. Failure to pay such expenses amounted to a breach of contract on the part of the Appellant which was justiciable before the Employment Tribunal, Chairman sitting alone, under Article 3 of the Employment Tribunals Extension of Jurisdiction Order 1994.

As to the second point, we are satisfied that the Appellant had every opportunity to put her evidence before the Chairman, if necessary as part of a written submission. She did not do so. Accordingly, there was no documentary evidence to support the contention that either Applicant had given consent in writing to a deduction of two week's notice pay from wages earned (ERA Section 13(1)(b) ). In these circumstances, these appeals fail on these grounds also.

Review decision (EAT/1078/98 (Robinson)

The sole ground of appeal against the review decision in Mrs Robinson's case is that the application for review should not have been determined by a Chairman alone.

Rule 11(5) of the Employment Tribunal Rules of Procedure provides that an application for review under Rule 11(1) may be determined by the Chairman who decided the case. It was, and he dismissed the application under rule 11(5). Accordingly, there is nothing in this point.

For completeness, we notice in the Appellant's fax dated 15 January 1999 that she claims to have lodged a similar appeal against a review decision in the case of Mrs Currie.

We are told by the administration staff at the EAT that no such appeal has been received. However, had such an appeal been lodged, relying on the same ground as that in the case of Mrs Robinson, it would inevitably have failed for the same reason.

Conclusion

It follows that each of these appeals is dismissed. We would add this: The hearing before us was ex-parte; as a result the Respondents to the appeal were not put to expense. Accordingly, we cannot order costs against the Appellant in favour of the Respondent. However, in these times of limited resources, we are frankly appalled that a case such as this involving a sum of money of a little over £100, has been drawn out by endless applications for postponements on the part of this Appellant. We regard her conduct throughout as a complete abuse of the Tribunal process.

Had we the power to order the Appellant to pay the costs incurred by the Employment Appeal Tribunal in hearing and determining these appeals, we should unhesitatingly have done so. That is a matter which the relevant authorities may wish to consider when reviewing the Employment Appeal Tribunal Rules.