MRS LORNA FOX T/A QFCC v MR R T PHILPS [2000] UKEAT 655_00_2911

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 655_00_2911

Case No Appeal No. EAT/655/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS LORNA FOX T/A QFCCAPPELLANT

MR R T PHILPSRESPONDENT

Before

Mr Justice Bell Mr D Norman Mr T C Thomas

Date 29 November 2000

[1]APPEARANCES For the Appellant NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT MR JUSTICE BELL : This is the preliminary hearing of an appeal by Mrs Fox lodged out of time with the leave of the President. Mrs Fox has not attended this morning. The best of our information is that she has made an error as to the date fixed for the hearing, that is the preliminary hearing of this appeal. During the morning there has been some suggestion that someone might attend, albeit rather late, to make submissions on her behalf aimed at achieving an adjournment of the preliminary hearing. No one has in fact attended. We have in any event reached the conclusion that this preliminary hearing ought to be adjourned with a view to obtaining further information in respect of Mrs Fox's complaint as we understand it. As Mrs Fox has not attended and no one has attended on her behalf, and the directions we propose to give will involve asking the Chairman of the tribunal against whose decision Mrs Fox appeals to assist this tribunal with further information and Employment Tribunal staff to assist this tribunal with further information, we propose to give a judgment setting out our reasons. The matter has an unfortunate history so far as the passage of time is concerned. Mr Philps, the applicant before the Employment Tribunal and the respondent to this appeal, was employed by Mrs Fox, trading as QFCC, as a registered care manager from 19th February 1996 until his summary dismissal on 4th February 1997. He presented an application complaining of unfair dismissal and seeking damages for breach of contract.

[2]On 1st August 1997 the Employment Tribunal's decision was promulgated striking out Mr Philps' claim for unfair dismissal through lack of the qualifying period for such a claim and directing that his complaint seeking an award of damages for breach of contract be listed for determination on its merits. The Employment Tribunal held at London (North), consisting of a Chairman sitting alone, heard Mr Philps claim for damages on 30th September 1997 and by a decision promulgated on 24th October 1997 found in his favour to a degree and ordered Mrs Fox to pay him £775 consisting of half of one month's money in lieu of notice, £625, and £150 unpaid holiday pay.

[3]Mrs Fox applied for a review of that decision, but the decision on review was not promulgated until 14th October 1999. By that time Mrs Fox was well out of time for serving a notice of appeal against the original tribunal decision and in fact her Notice of Appeal against the decision on review was a few days out of time. The President of this tribunal, Lindsay J, heard an application by Mrs Fox for an extension of time to serve her Notice of Appeal and gave her the leave which she required.

[4]From the decision on review it appears that Mrs Fox was complaining that she had been unable to or deprived of the opportunity to call witnesses on her behalf at the original tribunal hearing. The Chairman took the view upon review that no new evidence had become available since his original decision and any relevant witnesses were available at the time of the original hearing and that the interests of justice did not require a review.

[5]On 3rd December 1999 Mrs Fox wrote to the Employment Appeal Tribunal a letter which was received on 6th December 1999. Among other matters, it said:

"The Care Managers and other witnesses had been employed by myself and were willing to attend as witnesses to this effect. They are people of integrity and two were registered with the local authority to carry out their duties. … The Tribunal had no way of hearing the information because the witnesses never ever was able to speak 1) because of the advice was given by the Tribunal administration staff 2) because the Chairman first allowed there attendance and then disallowed it. I have pursued this for so long purely because of the injustice of it and had the witnesses been allowed to attend the outcome would have been different. … Miss Fernandes [ who we assume is a member of the tribunal staff ] clearly informed us that the Care Managers, ON THIS FIRST OCCASION THERE ATTENDANCE WOULD NOT BE NECESSARY. She based this on how long she anticipated the case would last. We were surprised that the Chairman who was sitting on the day that he wanted to clear that day! … The application was dismissed because there is no new evidence that has become available since the making of the decision. It is my contention that the old evidence has not yet been taken into consideration."

[6]We infer that Mrs Fox said something to the President when he heard her application for an extension of time, bearing on the question of not being able to call witnesses, because at paragraph 11 of his judgment the President said:

"11 Mrs Fox feels very strongly that she was not dealt justice on the hearing of 30 September 1997, when the hearing relating to contract only proceeded, and she tells me that witnesses that she could have called were not attended to; she feels very strongly a sense of grievance about the conduct of that day."

[7]Of course if Mrs Fox was deprived wrongly for whatever reason of the opportunity to call witnesses who might have given useful evidence on matters which were in issue, that is a matter for concern. But we today are in the position where we have suggestions that that was so to which we have already referred in the matters which we have quoted from Mrs Fox's letter and from the President's judgment, without any hard evidence of just what it is that Mrs Fox complains of.

[8]Accordingly, what we propose to do is to adjourn this preliminary appeal hearing and give directions as follows: that within 21 days Mrs Fox file evidence in the form of either an affidavit or a signed witness statement giving full particulars of just what her complaints are so far as being prevented from calling her witnesses is concerned. For instance, if she says she was given misleading information by a member of tribunal staff just what that information was, when it was given and by whom; next, in relation to proceedings before the tribunal, just what Mrs Fox claims she said to the Chairman about wishing to call witnesses or/and their availability or lack of availability on the day of hearing and just what it is she says the Chairman said or ruled in reply. We direct that when that evidence from Mrs Fox is in the hands of this tribunal it be sent to the office of the Employment Tribunal with a request for any comments from the tribunal staff there and it be sent to the Chairman of the tribunal with a request to provide his comments on what Mrs Fox claims. When that has been done the matter must come back before this tribunal to decide whether Mrs Fox has sufficient merit to proceed to a full inter partes hearing and, if so, in order that this tribunal can give directions for the full appeal hearing.