TOKYO DINER PLC v MISS S MATSUMOTO [2001] UKEAT 1063_00_0305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1063_00_0305Case No Appeal No. EAT/1063/00 EAT/1064/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
TOKYO DINER PLCAPPELLANTMISS S MATSUMOTORESPONDENT
Before
Mr Justice Charles Mr P DawsonDate 3 May 2001
[1]APPEARANCES For the Appellant MR CHARLES CIUMEI (of Counsel) Instructed By: Messrs Bow & Shore Solicitors 13 Wagner Street London E3 4JD For the Respondent MR B GOLDSPINK (Representative) MR JUSTICE CHARLES : We have before us two appeals in respect of a case in which the Applicant before the Employment Tribunal is a Ms Matsumoto and the Respondent is Tokyo Diner Plc.[2]In the claim the Applicant makes a claim for unfair dismissal. In their ET3 the Respondent company, Tokyo Diner Plc, raise a point as to the jurisdiction of the Employment Tribunal and ask that that point be dealt with at a preliminary hearing. That preliminary hearing was fixed to take place on 14 June 2000. On that occasion the Employment Tribunal made the following decision, namely that:
"(i) the complaint was presented within three months of the effective date of termination of the Applicant's employment; and (ii) the Applicant has more than one year's continuous service of employment with the Respondent; (iii) the matter is set down for a Full Merits Hearing with a time estimate of two days."
[3]As is apparent from paragraph 2 of those Extended Reasons that hearing took place without the Respondent company's representative being present and nobody being present on behalf of the Respondent company.[4]The background to that is disputed between the parties on the face of the documents that we have seen. They include(a) a statement from a Ms Hougie, who is a Solicitor who was due to represent the Respondent company, and(b) a skeleton argument prepared by a Mr Goldspink who represented the Applicant, both before the Employment Tribunal and before us, which we have treated as a statement setting out his recollection of events. The background is that on the evening before the hearing Ms Hougie received notification of a medical appointment to take place the next day. That appointment was for fertility treatment which meant that the timing of the appointment was of crucial importance. Her statement says that she unsuccessfully attempted to contact the Employment Tribunal that evening on hearing of the appointment. Her statement does not deal with the attempts she made that evening to try and get alternative representation through Counsel. In the end she decided to attend herself.[5]There is then a dispute between the parties in the sense that their recollection of events is different and is recorded differently in written documents. We cannot resolve that dispute on paper. Ms Hougie's statement is to the general effect that after a discussion between herself, Mr Goldspink and the Applicant, they had agreed that she could leave for her medical appointment and the case could be put back until she returned. That does not do full justice to her statement but it gives the general theme of it.[6]The general theme of Mr Goldspink's recollection of events is that he and his client were told, he says, in abrupt terms that there was a need for Ms Hougie to attend a medical appointment and were not told (and I would add at that stage were understandably not told) the nature of the appointment. He says that he had informed her that if the matter could not be heard during the morning then she should come back and tell him what the position was. He indicated to us (and indeed his statement indicates) that if Ms Hougie had come back and told him the matter would not have come on in the near future in the morning he would have agreed to an adjournment until after her medical appointment, particularly if he and his client had been told the nature of that appointment because they would have been sympathetic to Miss Hougie's dilemma.[7]What transpired was that Ms Hougie returned and said (I think) that the matter had been taken out on the basis of an agreement that it could be put back until later in the day. Mr Goldspink's recollection and assertion is that as he had not agreed to that he was not happy and approached the clerk at the Employment Tribunal after Ms Hougie had left the building for her medical appointment. The upshot of that, on his recollection, is that the Clerk went in and spoke to the Employment Tribunal. He does not know not what was said during that discussion. The matter was then called on and he told the Employment Tribunal that he had not agreed for the matter to be put back until the afternoon so that Ms Hougie could attend her medical appointment. The Employment Tribunal in paragraph 2 of their Extended Reasons say this:
"The matter was listed for a preliminary hearing before the Tribunal at 10:00 am on 14 June 2000. The Respondent's representative sought to excuse herself to the clerk, saying she had to go to an appointment and would be back at the Tribunal at 3 pm. The Tribunal was not prepared to wait to hear the case at the convenience of the Respondent's representative and dealt with the matter at approximately 11:30 am. The Tribunal was assisted in its consideration by Mr Goldspink, who was the Applicant's friend, who spoke on the Applicant's behalf. The Tribunal also had before it a bundle of documents prepared by the Applicant."
In commenting on Ms Hougie's statement the Chairman of the Employment Tribunal says this:
"The position as regards the Tribunal staff and the Tribunal which heard the matter is as set out in paragraph 2 of the decision of 14 June 2000 and is further reflected in the decision to reject a review. The Tribunal was at no point told that there had been an agreement between the parties to delay the hearing to the afternoon, only that the Respondent's representative had informed the Tribunal clerk that she would absent herself. This was conduct that was not acceptable to the Tribunal which was ready to call the case on."
[8]It is puzzling that that account does not actually accord with the accounts of either of the parties as to what transpired on that day. I say that because it is clear from Mr Goldspink's statement (and he has confirmed it to us today) that he informed the Employment Tribunal of the dispute between the parties as to whether or not there had been an agreement that the matter should go back until the afternoon. It is however perfectly possible and understandable that the Chairman by the time she wrote her letter on 22 December had forgotten that exchange between herself and Mr Goldspink.[9]Dealing a little further with the history. After the hearing and the receipt of the Extended Reasons the Respondent company (the Appellant before us) sought a review. They did that by a letter dated 21 July in which they set out, for example, the nature of Ms Hougie's treatment and set out a version of events leading up to it. Mr Goldspink points to some inconsistencies between that letter and Ms Hougie's statement but we do not think that anything turns on those distinctions, although we agree with him that they are on the face of it surprising.[10]The Chairman sitting alone refused the review and the Extended Reasons for that refusal were sent to the parties on 31 July 2000. Against that background the appeals that are before us are(a) against the original decision on the preliminary issue sent to the parties on 11 July 2000, and(b) the later refusal for review on 31 July 2000.[11]We propose to deal with the substance of the case first as opposed to the decisions to proceed in the absence of the Respondent's representative and then to refuse a review.[12]Having decided to proceed in the absence of a representative of the Respondent company, it seems to us that it then became incumbent (and, indeed, the rules so provide) upon the Employment Tribunal to consider with care the documents put in on behalf of the Respondent company. Additionally it seems to us that the fact that they decided to proceed in the absence of the Respondent's representative, knowing that a representative had attended on that day was a matter that they should have had regard to when explaining why they reached the decision that they did.[13]In his skeleton argument Mr Goldspink has drawn attention to a number of matters that are in dispute relating to the length of the Applicant's employment and it is apparent from that document and from the ET3 that there is a dispute of fact between, on the one hand the Applicant and, on the other hand a Mr Hills whose position with the Respondent company is not entirely clear. But he is either an employee or director of that company with whom the Applicant had discussions concerning her employment, both as to, as I understand it, her being employed and as to the end of her employment.[14]The ET3 raises a number of points:(1) Firstly in the document annexed to it which can be described as "the statement of case" it raises the points that the Applicant's employment ended contemporaneously with the ending of her work visa.(2) It then raises another point that if the Applicant continued to be employed after that she was engaged to work in Japan and that work would not qualify under the Employment Rights Act 1996 . (Pausing there it seems to us that arguments could arise as to that point. We have not investigated such arguments but they would be investigated by the Employment Tribunal when they hear the claim. They concern what is meant in the relevant provisions by working abroad. There may be an assertion that what the Applicant was doing was recruiting for the restaurant in this country and therefore that she should not be treated as working abroad for the purposes of the legislation).(3) Then it refers to an e:mail from the Applicant containing the sentence "As well as that, I think it is better to talk with you some things regarding my termination at Tokyo Diner" which leaves matters in the air.(4) Correspondence with the Department for Education and Employment is also exhibited.[15]One also has to take into account the points that the IT1 states in Box 4 that the termination date was undetermined and in the statement attached thereto the Applicant says that when she saw Mr Richard Hills on 19 January 2000 and asked when her contract was terminated, he said he "did not know".[16]Having regard to the pleadings to our minds a number of issues are raised which cry out for oral evidence, not least from Mr Richard Hills and also for records to be produced by the Respondent company. Given the representation of that company we express surprise that they did not come to the Employment Tribunal on the preliminary hearing armed with relevant statements and underlying documentation. Their position seems to have been that the documents that they produced were not going to be questioned and were decisive. It seems to us that they would have had some difficulty in convincing an Employment Tribunal that that was the case.[17]Additionally the problem arises that the documents produced by the Applicant do not lead one to a clear answer. In particular the reference letter which is referred to by the Employment Tribunal and was relied on by the Applicant does not lead one necessarily to the conclusion either that she was employed up to the date stated in that letter which is January 2000 or that that employment was employment in the United Kingdom and she had to win on both heads to establish her continuity of employment and thus the jurisdiction of the Employment Tribunal.[18]Given that background and therefore the issues between the parties, we turn to the Extended Reasons given for the decision of the Employment Tribunal sent to the parties on 11 July to see how they have dealt with them. They have dealt with them in paragraphs 3, 4, 5 and 6 of those Extended Reasons which are in the following terms:
"3 The Applicant said that she had been working for the Respondents since 1995 and that she was sent to Japan on behalf of the Respondents to recruit future employees for the Respondents. She was then asked by Mr Hills, the Director, to bring a person to London. She and Mr Hills agreed that she would say to the Immigration authorities that she was here on holiday. At that point her work permit had expired and although she had been asked by the Respondents to sign the application for a fresh work permit, she had yet to receive it. She would therefore only have permission to enter this country as a visitor. The Applicant sought to explore further with the Respondents her employment relationship when her pay ceased to go into her bank account from October 1999. In December 1999 the Respondents instructed solicitors to pursue further the work permit for the Applicant and ultimately paid solicitors for obtaining a work permit for the Applicant. 4 In January 2000 the Applicant met with the Director, Mr Hills, at his flat and asked what her employment position was as she had received no pay nor had she received any notice of termination nor her P45. Mr Hills's reply was that he did not know what the position was. He then drafted a reference for her in which it said that she had been employed by the Company from October 1995 until January 2000. 5 The Tribunal was satisfied on the basis of the evidence before them that the Applicant was employed by the Respondents until 19 January 2000 when a reference was provided to her by the Director of the Respondents indicating the duration of her employment and the quality of her work during that employment. As the Originating Application was presented on 1 April 2000, the complaint was presented within three months as required by section 111(2) of the Employment Rights Act 1996 and the Tribunal therefore had jurisdiction to consider the complaint. 6 In the light of the terms of the reference drafted by Mr Hills, the Tribunal accepted that the Applicant had more than one year's continuous service as required by section 108 of the 1996 Act and on that basis the Tribunal had jurisdiction to consider the complaint."
[19]It seems to us that those Extended Reasons signally fail to deal with the arguments that were being advanced by both sides and it can fairly be said that the parties do not know why they have won or lost. One could, it seems to us, re-write paragraph 5 by adding the word "not" in the phrase "The Tribunal was satisfied" to read "The Tribunal was not satisfied" and we think a reader would be little the wiser.[20]There are also points made in the skeleton argument on behalf of the Respondent company (the Appellant before us) that the Extended Reasons do not identify the date of termination. As to that, it seems to us on a fair reading, they identify 19 January 2000 as the date of termination but the point made that the date of commencement is not identified is, we accept, a good one. Interestingly in that respect the Applicant is now seeking to rely on an earlier date to that stated in her Originating Application so that is something, if she wishes to establish it, she will have to seek to prove at some stage.[21]Additionally, and on the basis of an approach that the Extended Reasons identify a termination date of 19 January 2000, the Extended Reasons are silent as to how that termination took place. This is going to be an issue within the unfair dismissal claim. Why did the termination take place, and how did it take place, are questions that, no doubt, will be asked in the determination of that claim. So in this respect the Extended Reasons also leave matters in the air.[22]For those reasons it seems to us that the Extended Reasons fall short of the standard required by decisions such as Meek and on that ground alone this appeal should be allowed.[23]We turn briefly to the other issue raised on the appeal in respect of this decision which was that the Employment Tribunal erred in law in continuing to hear the case in the absence of the Respondent company's representative. As to that we were referred to a decision in the Court of Appeal in Priddle v Fisher & Sons [1968] 1 WLR 1478 dealing with a hearing before an Industrial Tribunal. We were referred in particular to the facts in the headnote and to passages in the judgment of Lord Parker, Chief Justice, at page 1481 C to E and right at the end of his judgment 1482 F. There are similarities between the facts of that case and this one but there are also distinctions.[24]We express at this stage sympathy for the Employment Tribunal who have a busy list. If they are provided with information, as it seems that they were, and understood from that information that a representative of a Respondent has simply absented herself, that would cause justifiable annoyance. However, it does seem to us that there was an error of law here, or the exercise of discretion by the Employment Tribunal was outside the band of proper exercise of their judicial discretion. This is because it seems that there was no real enquiry in the presence of the party that was present as to what had occurred in the discussions outside court. As I have indicated the Clerk spoke alone to the Employment Tribunal. From that discussion paragraph 2 of the Extended Reasons indicates that the Employment Tribunal gained the impression and formed the view that Ms Hougie had simply absented herself. Neither of the parties put forward such a simplistic tale.[25]It seems to us, given the circumstances of this case, that a proper exercise of discretion would have involved the Employment Tribunal making closer enquiry as to what had occurred with the representative of the Applicant and then giving careful consideration to the state of their list and the disadvantages that would flow from them not having representation in the knowledge that the Respondent company had appeared with a representative on that day. It seems to us that the reason why a representative of a party has left warrants closer investigation than it seems was carried out in this case. It would be very unusual for a representative simply to absent herself. There would normally be a compelling reason.[26]The Extended Reasons do not explain the Employment Tribunal's thinking as to why they decided not to put the matter back until later in the afternoon to see if Ms Hougie returned and if she did to require her to explain herself and thereby clarify matters.[27]On those additional grounds we would allow the appeal.[28]That renders the consideration of the refusal to review academic. However we have to say that we agree with the submission put in on behalf of the Appellant company that the reasoning of the Chairman in the Extended Reasons on review is indefensible. At that stage the Chairman was put on full notice of the position looked at through the eyes of Ms Hougie and an allegation was being made that there had been an agreement that the matter should be put back having regard to her attendance for fertility treatment. The Chairman at that stage did not contact Mr Goldspink or the Applicant and ask for their views and simply did not investigate the matter. It seems to us that that was an error of law. In this context we were referred to a decision of this Tribunal in Hancock v Middleton to the effect that where, on a review, it is apparent that a dispute of fact arises, the Chairman should not deal with the matter by himself or herself.[29]This is not the time or place for us to express views as to the extent of a Chairman's discretion to hear matters himself under Rule 11(5) in determining whether or not a review has a reasonable prospect of success. We however agree that the Hancock v Middleton case is authority for the view that this Chairman should have investigated the matter before giving her Extended Reasons and concluding that the review had no prospect of success. It seems to us that, on the version of events advanced by Ms Hougie, the review had every prospect of success under the provisions of Rule 11 the approach to which is dealt with in cases such as Lindsay and Ironside v Ray & Vials [1994] ICR 384 and, importantly, Harbour v North London Polytechnic [1990] IRLR 198 which it seems likely the Chairman had in mind because she refers to contribution to a relevant error by the Employment Tribunal itself. It seems to us that there was such a contribution in this case, either because the Clerk did not fully explain the position to the Employment Tribunal but also, and more importantly, because that explanation was not reiterated to Mr Goldspink or, perhaps better, repeated or given in the presence of Mr Goldspink who was representing the Applicant which could have been an easier way of obtaining information as to what had been happening outside court.[30]It follows that, in our judgment, in refusing a review the Chairman in this case erred in law. That does not lead anywhere so far as this appeal is concerned because we have dealt with the matter on the substantive appeal.[31]That leaves the issue as to what should happen next. There has been discussion and submission as to whether or not this matter should be remitted for a preliminary hearing or whether it should be remitted on the basis that there is a full hearing at which the Employment Tribunal will have to consider either as a preliminary point or as part of its overall consideration whether or not it has jurisdiction to hear the case.[32]It seems to us that, given the nature of the dispute relating to the length of the employment, even though a decision thereon in favour of the Respondent company would be decisive, this is a case in which the appropriate course is that the matter should be listed on the basis that there is to be a full hearing at which the Employment Tribunal will, of course, have to consider the jurisdiction point. There will be considerable overlap of evidence between the jurisdictional point and if the Applicant were to succeed on it the issues relating to unfair dismissal. Not least the overlap would include how it came about that the employer says that her contract of employment was actually terminated.[33]We will therefore direct that this matter should come on by way of a full hearing and not be confined to a preliminary hearing.[34]We have made enquiry of the Employment Tribunal at London (North) and we understand that the case can be set down for 17 September. We cannot actually make that direction but would urge the parties, perhaps using the good offices of our Associate, to get that date fixed this morning for a two-day hearing on both the jurisdiction issue and if that is found in favour of the Applicant, the unfair dismissal claim itself.[35]Finally I return to a point I made earlier that it seems to us that the preliminary issue cries out for oral evidence and that one of the witnesses needs to be Mr Hills. We make the point that if Mr Hills chooses not to attend to give oral evidence the Employment Tribunal may make inferences on that basis. We will hear submissions now as to what, if any, directions we should make as to the filing of statements and of documents in respect of the case.[36]For the reasons I have given we allow the appeal and direct that the claim for unfair dismissal is to come on before a differently constituted Employment Tribunal with a time estimate of two days and that that hearing is set to deal with the claim in its totality.