(1) MR D LOWERY (2) CHELSEA VILLAGE MANAGEMENT LTD v MR A J LAMBERT [2000] UKEAT 195_00_1910

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 195_00_1910

Case No Appeal No. EAT/195/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

(1) MR D LOWERY (2) CHELSEA VILLAGE MANAGEMENT LTDAPPELLANT

MR A J LAMBERTRESPONDENT

Before

His Honour Judge J R Reid

Date 19 October 2000

[1]APPEARANCES For the Appellants MR PATRICK GREEN (of Counsel) Messrs Mark Taylor & Company Solicitors The Third Floor Stamford Bridge London SW6 1HS JUDGE REID QC : This is an appeal by the respondents below, Chelsea Village Management Ltd and David Lowery (I take it that it is an appeal by both, though it appears to have been some doubt as to whether, at various times, Mr Lowery has been represented or not) against a decision on review by an Employment Tribunal at London (North) when it determined that an application by the applicant below, the respondent to the appeal, Mr Lambert, should be successful and that his case should be relisted for hearing before a fresh tribunal with a time estimate of two days. The background facts are that on 26th August 1998 the applicant submitted a claim for wrongful dismissal, breach of contract and race discrimination against Mr Lowery and others. An amended Originating Application was received by the tribunal on 28th September 1998.

[2]A hearing for directions was ordered to take place on 4th December 1998. At that hearing the case was consolidated with that of another claimant, Mr Ali. By letter a Ms McGillivary told the tribunal that she was representing Mr Lambert and would not be available between 29th March and 20th June 1999 because she was expecting a baby on 1st May. Notice of Hearing listing the case for 18th and 19th March 1999 was sent on 13th January 1999. The hearing originally listed for 18th March 1999 was in due course postponed. Ms McGillivary wrote on behalf of the applicants saying that they would not be able to proceed with the hearing on 18th and 19th March 1999 due to a bereavement in the family. The case was then relisted for 25th and 26th May 1999. Not surprisingly Ms McGillivary said that these dates were not convenient because of her expected confinement and the matter was again postponed to 1st and 2nd July 1999. A Notice of Hearing was sent to Ms McGillivary on 24th March 1999.

[3]Nothing then was heard from the parties until the date of the hearing when neither Mr Lambert nor Ms McGillivary attended and the tribunal proceeded with the case of Mr Ali but dismissed Mr Lambert's claim pursuant to Rule 9(3) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993 .

[4]On 18th July 1999 Mr Lambert applied for a review stating that his stepsister, Ms McGillivary, was no longer representing him. Until he had received a visit from Mr Ali during the evening of 4th July he had not realised that the hearing had taken place. I should perhaps read the terms of that letter in full, since it has been subject to a good deal of comment:

"I wish to review of the decision of the Employment Tribunal made on 1st and 2nd July 1999, owing to my representative, Miss A McGillivary not informing me of the date of the hearing. I was also not aware that she was no longer representing me until I received a visit from Mr Omar Ali during the evening of 4th July 1999, after the hearing, leaving me with no notice of proceedings. I believe my representative did not advise me or continue to represent me following the death of our Mother. We are both involved in a dispute over our Mother's Estate. This has left me unable to liase with my sister, Miss McGillivary. I have tried on numerous occasions to obtain a date and information necessary from her, but she did not responded to my many requests. On the 8th July 1999, I received a package with a note advising me, Miss McGillivary would no longer be representing me. Included was a file containing all the information concerning my case, which I had not previously seen, due to this a decision was made in my absence. I would be grateful if you could take these matters into consideration, as I would like the opportunity to prove my case, especially as my information and evidence assisted Mr Ali's case. In the interests of justice, I consider these reasonable grounds for a review of my vase. I would be grateful if all future correspondence concerning my case could be sent to my address as above."

[5]At the hearing before the tribunal by way of review he gave evidence that he had not been aware of the case. But in cross-examination, according to the findings of fact, he did admit that he thought that the hearing was going to take place some time in July 1999, but at the time, he said, he was experiencing difficulties with his representative who was his step-sister with whom he was having an argument over the tenancy of his property. She was not speaking to him at the time.

[6]The sequence of events in relation to that appears to be that the common mother of Mr Lambert and step-sister died in February and there was dispute over the tenancy of the flat in which the mother had lived which had got so bitter that by 24th April Ms McGillivary had consulted solicitors regarding the dispute. In due course a notice to quit was sent to Mr Lambert in October which resulted in him being required to vacate the premises by 21st November.

[7]What is said on behalf of the appellants here is that the applicant, Mr Lambert, was not a truthful and honest witness. He clearly must have been in communication with his stepsister long after he says he was. He knew that the hearing would take place sometime in July. Whether or not he was someone who would readily understand the procedures of the tribunal, at the very least that he should have telephoned the tribunal when it was apparent that his stepsister was not telling him the details of the case or that he could have asked Mr Ali. He failed to produce any evidence of his alleged many requests to his stepsister for information. In all the circumstances, he had made no genuine attempt to obtain the date of the hearing. He therefore had no reasonable, credible or justifiable reason for his absence. The real reason, we are asked to infer, was that he had not done anything until after being made aware of Mr Ali's award, and that he suddenly realised that there might be some money in it for him.

[8]All of that was before the tribunal. The tribunal saw and assessed the applicant's evidence, and having seen him, they unanimously concluded that he did have a genuine reason for not knowing that the hearing was taking place on 1st and 2nd July. Whether the situation would have been the same if the hearing had taken place on say 29th and 30th July might be open to doubt. But here, the hearing took place at the very beginning of July.

[9]We have been forcefully conducted through the documentation. It has been suggested to us, with the aid of attempts to construe Mr Lambert's letter as if it was an Act of Parliament, that he was clearly trying to mislead the tribunal. Therefore not only did he have no genuine reason for not attending, but also he should, as a matter of justice, not be allowed to have a rehearing pursuant on a review pursuant to either Regulation 11(1)(c) or Regulation 11(1)(e).

[10]Criticism is made of the way in which the tribunal expressed its decision. It is said that the tribunal's decision was palpably perverse and that the reasons given did not support the conclusion which it reached.

[11]In our judgment these reasons, as given by the tribunal, might perhaps have been more elegantly expressed and might perhaps have been more fully expressed. But at the end of the day, it boiled down to what they made of the evidence of a man who they saw, and whose evidence and cross-examination they heard.

[12]Criticism is made of the fact that it was suggested he was not someone who would readily understand the procedures of the tribunal and but that did not go so far as saying that it gave him a good reason for not telephoning the tribunal to find the date.

[13]We take the view that, as is often the case when something is expressed in a decision, the words used were perhaps not the most apposite and may perhaps have been a rather more delicate way of the tribunal expressing their view of the applicant's understanding of matters, his general capabilities in dealing with day to day life at a time shortly after the death of his mother and also at a time when he was in dispute about what was evidently the roof over his head, than might otherwise been the case. But we, having looked at all this, think that this was obviously a case which turned on what the tribunal made of the evidence. The tribunal were perfectly entitled to reach the conclusions which they did. There was no error of law in the face of the decision. It cannot properly be said that the decision which the tribunal reached was perverse. In our judgment there is nothing in this which requires that it should go to a full hearing. The appeal will therefore be dismissed.