CREATIVE IMAGE TECHNOLOGY v MR D LEES [2000] UKEAT 1237_00_0410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1237_00_0410Case No Appeal No. EAT/1237/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CREATIVE IMAGE TECHNOLOGYAPPELLANTMR D LEESRESPONDENT
Before
Mr Justice LindsayDate 4 October 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE LINDSAY There appears to be some doubt or dispute as to the constitution of Creative Image Techonology. Is it simply a trading name for Mr and Mrs Perry, for S & K Perry in partnership? Is it a business carried on solely by Mrs Perry? Possibly is it something else? I have the IT1, which is dated 21 June of this year, by which Mr Darren Lees claims loss of income due to unfair forfeiture of right to 30 days notice upon cessation of employment. He addresses it to Mr & Mrs S & K Perry and under the heading:
"Please give the place where you worked or applied to work if different from above" he says "
Address (business) Creative Image Technology"and gives a Norwich address. That was responded to by way of an IT3 on 21 June by the Respondent who there described themselves as "S & K Perry, Creative Image Technology." On the face of thing one would think that to be a partnership using Creative Image Technology as a trading name. Quite what the position is I cannot take further because that is the only information I have in that area.[2]Piecing together the rather randomly associated bits of paper that have been supplied, it seems that on 19 September there was some form of postponement of the hearing at the Employment Tribunal at Bury St Edmunds and that the chairman or perhaps all three members dealing with the matter at Bury St Edmunds said that there was to be a postponement but that it was a postponement granted with the greatest reluctance.[3]At some stage, and again it is not quite clear when the point emerged, a yet further adjournment was sought by Mrs Perry. I say Mrs Perry because it was Mrs Perry alone rather than Mr and Mrs Perry who sought it but it was sought by her, Mrs Perry, in the name of Creative Image Technology. She requested a postponement due to continuing ill health on 28 September and she says:
"Please find attached a letter from my doctor confirming this."
In fact there is, on my particular copy, no letter attached to that request.[4]There must have been a letter of 2 October from either Creative Image Technology or Mrs Perry to the Employment Tribunal amplifying the request for an adjournment. The adjournment in question seems to be an adjournment of a hearing otherwise fixed for 5 October (namely tomorrow) and it seems to have been dealt with by a chairman alone, Mr B G Mitchell. The letter from the Employment Tribunal at Bury St Edmunds on 2 October to Creative Image Technology c/o Mr & Mrs S & K Perry says inter alia:
"The letter of 23 August 2000 to a proposed witness for the Respondent was signed by Steve Perry and it appeared clear from that letter that he was co-ordinating the defence to this case. The Notice of Appearance was entered on 10 July 2000 and showed the name of the Respondent as "
S & K Perry". It would, incidentally, also appeared to have been signed by Steve Perry. Your letter of appointment of the Applicant dated 29 November 1999 is signed by you as "partner". These facts point against the contention that this has been a business run by a sole trader since 6 April 1999. If during the course of the hearing it becomes clear that your evidence is vital for the just disposal of the case and that Mr Perry (as someone closely involved with this case throughout) is unable to deal with it, the Tribunal hearing the case may adjourn it. A further postponement is not justified having regard to the interests both other party to this case and the just disposal of the case". The letter conveniently gave the addressee the address of the Employment Appeal Tribunal. That was 2 October. On 3 October, notwithstanding that the address of the Employment Appeal Tribunal had been given to her, Mrs Perry faxed the Employment Tribunal indicating she wished to appeal against the refusal of an adjournment.[5]On 4 October the Tribunal told Mrs Perry that an appeal, if to be lodged, had to be directed to the Employment Appeal Tribunal and on the same day (4 October, today) Mrs Perry indicated that she appealed to the Employment Appeal Tribunal and the matter has thus come before me. I have no lay members sitting with me and it may be that I have no jurisdiction to deal with the matter but assuming that I have jurisdiction to deal with the matter, I must refer to one or two points.[6]The first is that in the papers that I do have in front of me I have a series of indications of Mrs Perry's medical position. There is a medical certificate of 1 September relative to Mrs Perry saying she should refrain from work for a month but that, of course, has expired. Then on 11 September Dr Leeming, as it seems, of the Drayton & St Faiths Medical Practice at Drayton in Norwich wrote:
"Mrs Perry has chronic anxiety and depression, and has been on long-term medication for several months. She is totally incapable of attending a tribunal hearing as she would not be able to defend herself. Her illness will increase if she is forced to attend."
[7]That was on 11 September. It does not, in fact, have anything that in terms relates to 5 October but it is hard to believe that it was not intended to relate to the hearing of 5 October. Then finally there is before me a letter, again from Dr Leeming, of the 27 September and headed "Kelly Perry" and saying:
"Her diagnosis remains the same. I cannot see her problems resolving within the next 3 months."
[8]So on the face of things (which is the deepest level at which one can deal with the matter on the information so far put forward) there is ground for an application for an adjournment, if it is the case that the Respondent is a sole practitioner and the sole practitioner is Mrs Perry or, perhaps, if the Respondent is a firm of which she is the partner able to give direct evidence on any points of relevance. But there is plainly a history of previous applications and the letter of 2 October from the office of the Employment Tribunal sets out something of a history that suggests that there is or may be some reason to believe that the case could proceed without Mrs Perry being present. But also the letter acknowledges that if it transpires in the course of the case that Mrs Perry's involvement is truly necessary for a just hearing then the Tribunal hearing the case may adjourn it.[9]In those circumstances, where it may be that there is further medical evidence that has not yet come to the Tribunal's attention, and given that they recognise already that a case may arise for an adjournment being appropriate, it seems to me that quite the best course, whether I have jurisdiction to do otherwise or not, is that I simply make no order on Mrs Perry's application in the contemplation that if any difficulty of any substance does arise tomorrow, 5 October, or on any succeeding day in the conduct of the appeal, the Tribunal will give serious consideration, as I am sure they ordinarily would, to Mrs Perry's medical position as it is then laid in front of them.[10]So I make no order but do so in the contemplation that the matter will be dealt with if necessary at the Tribunal itself, they, of course, having a fuller picture of the past history of the matter and also able to receive not only information from Mrs Perry or on behalf of Creative Image Technology but able fairly to hear also Mr Lees on the point. So I make no order on today's application.