RH & DT EDWARDS (T/A EROS TRAVEL) v 1) MR L G ELDRIDGE 2) SHAMROCK TRAVEL [2000] UKEAT 196_00_0611

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 196_00_0611Case No Appeal No. EAT/196/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
RH & DT EDWARDS (T/A EROS TRAVEL)APPELLANT1) MR L G ELDRIDGE 2) SHAMROCK TRAVELRESPONDENT
Before
Sir Christopher BellamyDate 6 November 2000
[1]APPEARANCES For the Appellant MR C JONES Director SIR CHRISTOPHER BELLAMY QC This is an Appeal from the decision of the Employment Tribunal sitting at London (North) which was sent to the parties on 24 January 2000. In that decision the Employment Tribunal awarded the Applicant, Mr Eldridge, the sum of £1244 as money due to him from his employment with the Respondent Company R H & D T Edwards Limited. The case comes before us on an Ex Parte Preliminary Hearing in order to determine whether the Appeal raises a reasonably arguable error of law on the part of the Employment Tribunal. It is only if there is such an error of law that we have any jurisdiction to hear this Appeal.[2]The background is that Mr Eldridge who is a PCV driver claimed that he had been employed by the Respondent Company under a written contract dated 14 December 1998 to start on the 29 December 1998. However, when he turned up for work on that day there was no work to be done, apparently because no operating licence had been granted for the Respondent's public service vehicles. According to the Tribunal's decision, after a meeting which took place on 22 January the Applicant, Mr Eldridge, decided to terminate his employment.[3]In his IT1 he claimed, in effect, his wages for the month of January 1999. That application was made against 2 organisations, one was Shamrock Travel and the other was the Respondent R H & D T Edwards Limited (t/a Eros Travel) and an address was given in London NW10 in Harlesdon.[4]Shamrock Travel entered a Notice of Appearance to that Application which is dated 2 April 1999 and is signed by Mrs A Jones, who is in fact the wife of Mr Jones who has presented the Appeal today on behalf of R H & D T Edwards Limited. In that Notice of Appearance Shamrock Travel said as follows:
"WE KNOW NOTHING ABOUT MR L G ELDRIDGE. HE HAS NEVER BEEN EMPLOYED BY US OR EVEN BEEN OFFERED A CONTRACT BY US. R H & D T EDWARDS LTD THE COMPANY TO WHICH HE REFERS IS A SEPARATE ENTITY OF WHICH MY HUSBAND IS THE MANAGING DIRECTOR."
[5]The Respondent Company R H & D T Edwards Limited did not, however, enter a Notice of Appearance. The Tribunal in its decision found that the Applicant Mr Eldridge was not employed by Shamrock Travel but they accepted his evidence of the contract with R H & D T Edwards Limited, and accepted that he was entitled to be paid his wages for the period from 24 December 1998 to 29 January 1998. They awarded him the sum of £1244 for his wages.[6]The Respondent then appealed by a Notice of Appeal to this Tribunal that was dated 15 November 1999. The Respondent in that Notice of Appeal contends that it was not aware until shortly before the hearing was due to take place of the hearing, all correspondence having been sent to the London address that I have mentioned, and that a letter was given to a Mr Mitchell dated 23 October to pass to the Employment Tribunal at the hearing to explain the position.[7]As regards the substantive part of the case, the main contention is that no one had authority on behalf of the Company to enter into the contract of employment with Mr Eldridge. The Company, at that time it is said, was a dormant Company. It was not trading. It had no premises or vehicles and there was no possibility of it entering into a contract, and Mr Jones would not have authorised anyone to do so in advance of obtaining an operating licence.[8]The point is further taken that the regulations that govern PCV operators do not allow drivers to drive in excess of 90 hours for a 2 consecutive week period, and that in this case the calculation which is based on paid work of 60 hours a week is excessive.[9]However, that Notice of Appeal having been received, it was pointed out to the Respondent in accordance with paragraph 16 of the Employment Appeal Tribunal's guidance notes on preliminary hearings, that if an Appellant in a case has not entered the Notice of Appearance before the Employment Tribunal, and has not applied for an extension of time for doing so, the Appellant will not be permitted to pursue the Appeal, unless the Employment Appeal Tribunal is satisfied that the Preliminary Hearing that:(1) there is a good excuse for failing to enter a Notice of Appearance and, if that be the case, for failing to apply for such an extension, and(2) there is a reasonably arguable defence to the claim in the originating application.[10]In order to satisfy the Employment Appeal Tribunal on those matters, the Appellant must swear and lodge at the Employment Appeal Tribunal, an affidavit explaining in detail the circumstances in which there has been a failure to serve a Notice of Appearance in time or to apply for such an extension of time, the reasons for that failure, and the facts relied upon for contesting the claim on the merits.[11]No such affidavit was initially served and when the matter first came before the Appeal Tribunal on 15 June the Appellant was given a further 21 days in order to serve an affidavit. The first affidavit served was in fact also defective because it did not explain why no appearance had been entered. A further affidavit was then ordered and it was not until 27 July that a second affidavit was received purporting to explain why a Notice of Appearance had not been entered.[12]So the questions for us are first, whether we are satisfied that there was a good reason for not entering a Notice of Appearance and secondly, whether there is an arguable defence on the merits in this case.[13]As regards the first point, the Applicant argues that all the relevant correspondence went to the wrong address, and that they therefore did not receive due notice of the proceedings and, secondly, that Mrs Jones of Shamrock Travel did not in fact alert her husband, Mr Jones, to the existence of the case against R H & D T Edwards Limited despite the fact that by their Notice of Appearance of 2 April 1999 Shamrock Travel had indicated that R H & D T Edwards was indeed a separate Company of which Mr Jones was the managing director.[14]On those points, we have to observe that the explanations provided by the Appellant concentrate on the fact that the Appellant did not receive any notification of the Tribunal's hearing. However, it is clear from the evidence that the Appellant did know of the hearing approximately a week before, that is to say in October 1999 and was therefore aware of the proceedings at the latest at that date.[15]There is therefore no reason why as at that date, the Appellant Company could not have applied to the Tribunal to extend the time for entering a Notice of Appearance. No such application was made and we see no good reason for not applying to the Tribunal to extend the time for entering an appearance.[16]As regards the fact which has been drawn to our attention that the Appellant did supply the Tribunal with a letter purporting to advise the Employment Tribunal of the position, rule 3 of the Employment Tribunals (Constitution and Rules Procedure) Regulations 1993 provides in paragraph 2:
"A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings"
[17]Since an appearance had not in fact been entered in this case, the Employment Tribunal cannot be criticised for not apparently take into account the representations were made in the letter of 23 October which was apparently forwarded to them. That letter is in fact before us but does not contain any explanation as to why a Notice of Appearance had not been entered.[18]In those circumstances, it is difficult for us to be satisfied of the first limb of the matters of which we have to be satisfied, namely that there was a good reason for not entering the Notice of Appearance in this case. Matters that come before Employment Tribunals are serious matters and these statutory obligations have to be complied with.[19]As regards the second limb of the case, whether the material before us suggests that there is an arguable defence on the merits, our jurisdiction is limited to deciding whether there is an error of law in the Tribunal's decision and we are not competent to treat matters of fact as errors of law unless we are satisfied that the Tribunal came to a perverse result on the basis of the material before it.[20]As regards the arguments put to us by Mr Jones who has indeed presented the Company's position persuasively this morning, we are not able to say that the mere fact that the Company R H & DT Edwards was not at that time yet trading, or that it had no assets or no licence, or no vehicles and so forth, was any legal bar to the Company entering into a contract in anticipation of operating licences being awarded.[21]The argument that no-one except Mr Jones himself had authority to enter into such a contract does not meet the possibility that the 2 gentlemen mentioned in the Tribunal's decision, a Mr Doug Peacock and Mr McCourt did in fact have either implied authority or what is called in law ostensible authority to enter into the contract in question.[22]Although we have not been shown the specific contract, entered into by Mr Eldridge, we have been shown a standard form contract of a kind that was apparently being used about that time. This refers to the relevant employee (there is no name because it is a standard form) being employed by R H & D T Edwards Limited at Battersea until 26 December 1998 and then Park Royal as a PCV driver and it sets out the terms of pay which are in fact the same as those that were offered to Mr Eldridge.[23]That document which we have been shown appears to us to confirm, or at least lend support to, the findings of the Tribunal, and to lend no support to the Appellant's contentions. There is no material before us to negative the finding of fact by the Tribunal that indeed Mr Eldridge was offered and entered into a written contract dated 14 December 1998 with the second Respondent R &H & D T Edwards Limited. The various matters that have been drawn to our attention are certainly asserted, but we have to be satisfied on the basis of hard and solid material that the Tribunal's decision on that point was perverse. We are not so satisfied.[24]As regards the other point that is raised on this Appeal, that is to say that the Tribunal has miscalculated the number of hours for which Mr Eldridge would have been paid we are not at this stage in a position to say definitively whether or not the Tribunal made an error of calculation in that respect. That would be a matter of further argument taking into account among other things the question of whether to what extent Mr Eldridge would in fact be paid for waiting time or rest time.[25]Given that we are not satisfied that there was any good reason why an appearance was not entered into in this case, and given that this last point represents only a subsidiary part of the claim, we do not think that that last point in itself, would justify this appeal going forward to a full hearing.[26]The result of those reasons is that we have come to conclusion this Appeal must be dismissed.