THE ACORN NURSING RESIDENTIAL HOME v MRS A MENDIRATTA [2001] UKEAT 0726_01_1010

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0726_01_1010

Case No Appeal No. EAT/0726/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

THE ACORN NURSING RESIDENTIAL HOMEAPPELLANT

MRS A MENDIRATTARESPONDENT

Before

Mr Justice Lindsay

Date 10 October 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us a Preliminary Hearing in relation to an appeal in the matter The Acorn Nursing Residential Home Limited v Mrs A Mendiratta . This morning no one appears for the Appellant, Acorn. Very recently we have received fax from a firm called PKF that says:

"I write to inform you that I was appointed to act as Liquidator of the above company [that is Acorn Nursing Residential Home Limited, a slightly different name from the title we have, which is Acorn Nursing and Residential Home Limited, but presumably the same body] on 2 July 2001. Please be advised that the company will not be represented at the hearing on 10 October 2001. The result of the hearing should be sent to:- M Lloyd – Liquidator of Acorn Nursing and Residential Home Limited [so it is plainly the same company]"

Although there is no representation we perhaps ought to briefly deal with the matter on its merits.

[2]On 21 August 2000, Miss Mendiratta lodged an IT1 for failure to pay wages and holiday pay. On 6 September, Acorn resisted that by lodging an IT3. There was a hearing on 29 January 2001. Oral evidence was given as well as, of course, of documents being put in front of the Tribunal. On 14 February 2001, summary reasons emerged from the Tribunal. The unanimous decision of the Employment Tribunal, which was the decision of the Tribunal at Nottingham under the chairmanship of Mr T R Capp, was that:

"(a) The respondent had made unlawful deductions from the Applicant's wages and is ordered to pay her £1,007.08. (b) The Respondent has breached the employment contract and is ordered to pay to the applicant damages in the sum of £274.42 (c) The applicant is entitled to accrued holiday pay in the sum of £878.15 and the respondent is ordered to pay this to her. (d) The respondent's counter-claim is dismissed."

Those were only Summary Reasons. On 27 March a Notice of Appeal was received. On 3 April the Employment Appeal Tribunal explained to Acorn that Extended Reasons were needed if an appeal was to be pursued and that they would have to be applied for to the Employment Tribunal. On 11 April, Acorn asked for Extended Reasons from the Employment Tribunal and on 19 April they were refused as the request was out of time, as indeed it was. On 20 April, Acorn lodged an appeal against the refusal of the Employment Tribunal to provide Extended Reasons. As to the refusal to supply Extended Reasons we are given no reason whatsoever that explains the delay in Acorn's applying for them.

[3]As for the appeal on the merits. It is chiefly, if not altogether, an appeal as to the facts that were found. If it is on any point of law at all, it is not the sort of appeal which could be dealt with simply on Summary Reasons. Sometimes there are cases where it is plain that the Summary Reasons themselves adequately explain the case, but that could not be said to be the case here. Moreover, on the merits of the underlying appeal, the Summary Reasons indicate that the oral evidence of the Applicant was preferred to that of Acorn, or as was given on behalf of Acorn, and the Employment Tribunal took the view that the documents that were produced to them supported the Applicant's case. So, not only is the Notice of Appeal as to fact, but it would be up against the difficulty that the Employment Tribunal expressly indicates that it has preferred the Applicant's evidence.

[4]Those features coupled with the fact that no one has turned up today to argue the case and moreover that the company has gone into liquidation, all point towards a dismissal of both appeals, that it to say, not only the appeal as to the Employment Tribunal's refusal to give Extended Reasons but also the appeal standing behind that, the Notice of Appeal that was received on 27 March. We have seen no arguable error of law to be disclosed by either of those Notices of Appeal and accordingly dismiss both, even at this preliminary stage.