WILLIAM S GRAHAM LTD T/A W S GRAHAM & SONS & THE CALLS GRILL v MR W O'DONNELL [2000] UKEAT 545_00_1910

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 545_00_1910

Case No Appeal No. EAT/545/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

WILLIAM S GRAHAM LTD T/A W S GRAHAM & SONS & THE CALLS GRILLAPPELLANT

MR W O'DONNELLRESPONDENT

Before

Sir Christopher Bellamy

Date 19 October 2000

[1]APPEARANCES For the Appellant MR P MOONEY Instructed by: Employment Law Advisory Services Lancaster House Old Wellington Road Eccles Manchester M30 9QG SIR CHRISTOPHER BELLAMY QC In this appeal, which comes before us by way of a preliminary hearing, the Respondent appeals from the decision of the Employment Tribunal which sat at Leeds on 13 December 1999 and sent its Decision to the parties on 17 March 2000.

[2]In the proceedings the Applicant, Mr O'Donnell, was claiming unfair dismissal and the Respondent company, which is now identified as William S Graham Ltd, did not enter an appearance to the IT1. What further occurred was that on the day of the hearing, which was 13 December 1999, Mr O'Donnell apparently had an accident on the way to the hearing, so the Chairman proceeded to deal with the matter in the absence of the Applicant, although he was represented by his solicitor. The Chairman dealt with the matter on the basis of the written material that he had before him.

[3]The Chairman found that Mr O'Donnell had been unfairly dismissed, and in paragraph 3 of the Decision the Chairman recites his findings to the effect that:

"3.1 On the 27 June 1997, Mr O'Donnell started work as a chef at The Calls Grill in Leeds. 3.2 On the 15 June 1999, without any notice or consultation he was told by the Manager of the restaurant that he was being made redundant with immediate effect. He was paid statutory redundancy pay and two week's pay in lieu of notice and he left that day. 3.3 He subsequently discovered that his job had been given to someone whom he believes to have been a friend of the Executive Head Chef."

In paragraph 4 of the Decision the Chairman found that: "4. The Respondent having failed to appear and failed to enter a Notice of Appearance, had failed to establish the reason for dismissal and that it was a potentially fair reason falling within Section 98 of the Employment Rights Act 1996 …." and concluded that the Applicant's dismissal was thus unfair. The Chairman then proceeded to calculate the compensation and came to the conclusion that there would be an award of compensation for a total of £8,900.

[4]Before those reasons were sent out on 17 March, it appears that the Tribunal received a letter from the Applicant's solicitors which is dated 7 March 2000 in which they applied for an Order under the Employment Tribunal's Rules of Procedure that:

"…William S Graham Ltd, trading as W S Graham & Sons & the Calls Grill, be substituted as the Respondent for William S Graham on the grounds that: 1. The Applicant believed his employer to be William S Graham trading as the Calls Grill and proceedings were commenced naming William S Graham as the Respondent. 2. On 10 September 1999, we wrote to William S Graham at the Calls Grill notifying them of the intended proceedings. There was no response to that letter and the letter was not returned marked 'undelivered'. 3 Proceedings were commenced on the 13 th September 1999, naming William S Graham as the Respondent. The proceedings were not returned indicating there was no one of that name at the address given. 4. On the 15 th September 1999 we received a telephone call from someone describing themselves as 'Mr Graham' confirming that the Applicant had been dismissed, but he did not believe that the Applicant had a case as he did not have 2 years continuous employment. We checked the position and telephoned Mr Graham back and advised him that only one year's continuous employment was required. It was clear therefore that Mr Graham (a director of the proposed Respondent company) was aware of the position and was aware of the proceedings. 5. Subsequently, notification of the hearing date was given but at no time was any response forthcoming, nor did anyone from the Respondent at any time attempt to notify the Applicant, ourselves or the Tribunal that the Applicant had in fact been employed by William S Graham Ltd"

[5]Apparently as a result of that letter, which as I say was a letter to the Tribunal from the Applicant's solicitors, paragraph 2 of the Decision recites that the Respondent's name has changed to William S Graham Ltd trading as W S Graham & Sons & The Calls Grill, in accordance with the information provided by the Applicant's representative in the letter to the Tribunal of 7 March 2000.

[6]The Respondent company has now appealed to the Employment Appeal Tribunal and our task today is to decide whether that appeal should proceed to a full hearing. It is clear from this Tribunal's Practice Direction, Rule 16, that in order to do that the Respondent company has to satisfy us of two matters:(i) it has to satisfy us that there were good grounds for not entering an appearance and

(ii) it has to satisfy us that there is a fairly arguable defence on the merits.

[7]On the first point, as to the reasons for the non-entry of appearance, the Respondent argues essentially that it never received the original IT1. The Respondent draws attention to the fact that the IT1 is addressed to 'Mr William S Graham' at 'The Calls Grill, 33-38 The Calls, Leeds'. Mr William S Graham is not the Respondent company: there is no company of that name and the company William S Graham Ltd trades at Dewsbury, and not in Leeds. There are, it is true, various members of the Graham family, but they are not correctly described in the IT1. There is no postcode given for the Respondent's address, and the Respondent thus asserts that it never received any kind of notice of the proceedings, and therefore knew, in effect, nothing about it.

[8]As regards the merits of the case, the Respondent argues that the Chairman should not have proceeded to deal with the matter in the absence of either the Applicant or the Respondent; that if the Applicant had been there in person, there would have been at least some kind of enquiry into why a Notice of Appearance had not been entered by the Respondent; and, in any event, some kind of enquiry should have been made. In the various arguments put forward the Respondent has questioned whether the Chairman was entitled, having regard in particular, to paragraph 9.3 of the Employment Tribunals (Constitution Rules and Procedures)Regulations 1993 to proceed as he did.

[9]The Respondent's case is further supported by an affidavit sworn by John Stewart Graham who states that he is the Managing Director of William S Graham Limited, and he explains that The Calls Grill is a restaurant run by that company, but that the company's head office is in Dewsbury. He refers to the fact that he did not know that the application had been received and also to another case in the Employment Tribunal at Leeds where, according to Mr Graham, a somewhat similar problem may have arisen. That affidavit also annexes a draft of the Notice of Appearance to which are attached certain Grounds of Resistance and the Respondent, that is to say the Appellant today, relies on those Grounds of Resistance as establishing an arguable defence on the merits.

[10]As to the first matter, as to whether or not the Respondents have established why a Notice of Appearance was not entered, we take account of the fact that the IT1 was sent to the address at which the Applicant, Mr O'Donnell, worked. It is true that it was addressed to a 'Mr William S Graham' and not to the Respondent company, and it is also true that there is no postcode in the address given on that form. However there is no evidence that that document was returned in the course of post and no particular reason to suppose, and no sufficiently convincing reason to suppose, that it did not effectively reach The Calls Grill at 36-38 The Calls, Leeds. Being addressed to a 'William S Graham', it is hard to believe that no one in the Graham family at that address would have been unaware of the letter, and would not have taken cognisance of it. More particularly, we do take account, and in our view are entitled to take account, of the fact that the solicitors for the Applicant stated, in a letter of 7 March 2000, which was thus written well before any assertion by the Respondents that they never received the letter, that a Mr Graham had telephoned them on 15 September 1999, had confirmed that the Applicant had been dismissed, and had said that he did not believe the Applicant had a case, and that the solicitors in question had checked the position and telephoned Mr Graham back. It seems to us highly unlikely that the solicitors could have been mistaken about that, and we are driven to the conclusion that responsible officers of the Respondent company did know of this application. In any event the Respondent has not discharged the burden which is upon the Respondent to convince us that there was a good reason for not entering an appearance in due time.

[11]That would, in itself, be sufficient to dismiss this appeal but we add the following, as regards the second element that the Respondent needs to satisfy us about, namely whether there is a defence on the merits. First of all, we can see no reason for criticising the fact that the Chairman acted as he did in proceeding to deal with the application on paper, in the absence of the Applicant, but in the presence of the Applicant's solicitor. That facility is open to the Chairman by virtue of Rule 9(3) of the Employment Tribunal Rules, to which we have already referred, and the Chairman's explanation that it would be unjust to the Applicant to adjourn the case, causing further expense, appears to us to be an entirely reasonable decision which can not in any way be described at perverse.

[12]We can find nothing in the rules that prevented the Chairman acting as he did and notably the Respondent, not having entered an appearance, was not entitled, pursuant to Rule 3(2) to receive a copy of the written representations that the Chairman was considering. We have had drawn to our attention the case of The Crown –v- The Industrial Tribunal Ex Parte George Green & Thompson Ltd which is reported in the reports for 1967, but since that case turns entirely on rules that have long since been superseded we do not regard that case as helpful in deciding the present matter. We also consider that the Chairman had no reason to adjourn and no reason to make any further enquiries as to why a Notice of Appearance had not been entered.

[13]Finally, as regards the Grounds of Resistance, we would observe, first, that the affidavit of Mr Graham sworn in these proceedings does not contain a statement of truth as to the facts set out in those grounds. It also appears, from the face of the grounds, that it is not a case of the Applicant's job disappearing, there was still going to be a job for a chef, the Grounds of Resistance appear to be putting in question the Applicant's capability to do the job that he was then engaged to do and which would continue to exist after his apparent dismissal. We are, on those facts, not satisfied that there is a case on the merits which would suggest that this is a case of redundancy rather than unfair dismissal, and the material that the Respondents have placed before the Tribunal in that regard is insufficient to satisfy us on that point. For those two reasons the result must follow that this appeal is dismissed.