MRS L G MILLS v MR R H JOHNSON [2001] UKEAT 1107_00_0703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1107_00_0703Case No Appeal No. EAT/1107/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS L G MILLSAPPELLANTMR R H JOHNSONRESPONDENT
Before
Mr Justice LindsayDate 7 March 2001
[1]APPEARANCES For the Appellant APPELLANT IN PERSON THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) : We have before us, by way of a preliminary hearing, the appeal of Mrs L G Mills in the matter Mills v Mr R H Johnson. Mr R H Johnson was the employer and today Mrs Mills has appeared in person. The chronology of the matter is this that on 27 April 2000 Mrs Mills presented an IT1 for redundancy pay and notice and holiday pay. She said that she had been employed from September 1992 to April 2000. No notice of appearance was entered by the employer Mr Johnson. At some stage not clear from our papers a hearing was fixed for 19 July 2000. The day before that hearing, 18 July, two letters or faxes were sent to the Employment Tribunal. The first one from Mr Johnson, the employer, said that he could not attend that hearing. The second one, from Mrs Mills, faxed in from Greece, was to say that she could not attend either. It said:
"Please can you fax me back on this number to let me know if there is a problem if I do not attend."
[2]Well, the hearing took place on 19 July notwithstanding those two communications; it seems there had been no fax back to Mrs Mills in Greece. Neither side appeared at the hearing. Neither side was represented and the Respondent, Mr Johnson, still had not put in a notice of appearance. On 18 August 2000, the decision was sent to the parties. It was the decision of the Employment Tribunal at Hereford under the Chairmanship of Miss C Collier and it said:
"The unanimous decision of the Tribunal is that the Applicant's application for redundancy, notice and holiday pay be dismissed."
Full Reasons: 1. The Applicant submitted an IT1 in which she claimed redundancy, notice and holiday pay. The Respondent did not enter an appearance. 2. The Applicant informed the Tribunal office she would not be attending the hearing as she was staying in Greece. In her IT1 the Applicant did not give any substantive details to support her claim. The Tribunal therefore dismissed the application."[3]On 29 August, there was a notice of appeal from Mrs Mills together with a letter from her husband. And he wrote, referring to Section 6 in the Notice of Appeal printed form:
"I have problems with Question 6. I do not think we can quote a point of law. We are asking that the Tribunal accept that my wife failed to attend the original hearing through no fault of her own and that we did try to contact the Tribunal before the hearing but clearly I did not explain our problem fully enough. To explain further, our daughter went on holiday to Greece but while there found a job. Problems resulted and we decided that my wife should go out, try to resolve those problems and bring our daughter home. This has taken longer than expected; she is still there and could be there until the end of September. The whole affair has caused the family considerable distress. We would, therefore, politely ask the Tribunal to agree to hear the case again at a later date."
Now it is to be noted that if an IT1 is such that it cannot, on the facts it states, entitle the Applicant to the relief that is claimed in it, the Tribunal has power to say that it would not register that IT1 - see Employment Tribunal Rule 1(ii). But no such notice was given to Mrs Mills so that, if she had reflected on it at all, she was to that extent entitled to think that her notice of appeal could obtain relief on the facts that it stated. Moreover, the Employment Tribunal can, of its own motion, require particulars to be supplied - see Rule 4(i). But no order for particulars was made by the Tribunal. If Mrs Mills had reflected on that, again she might have thought that as particulars had not been asked for, as they could be asked for if the Tribunal thought they were necessary, no doubt the Tribunal had not thought them to be necessary.[4]Turning to the other side, the Respondent's side, where no appearance has been entered by a Respondent the case can go ahead without the Respondent being able to take part at all - see Employment Tribunal 3(i). In such circumstances, as it seems to us, the Tribunal arguably , (and one has to underline the word because all we are concerned about in this preliminary hearing is whether the point is arguable) arguably, was in error in dismissing the claim without first giving Mrs Mills an opportunity to give particulars of a claim which had not been taken to fail on the threshold and of which no particulars had by then been sought, a claim which had, it seems, been registered and where, on the face of things, it would, in the absence of a notice of appearance, have gone through unopposed. As that, in our view, is arguable we permit the matter to go for a full hearing.[5]Mrs Mills should be encouraged to take advice and also to communicate with the Arbitration Conciliation Advisory Service (ACAS). It may be that Mr Johnson is not worth powder and shot. There is some indication in the papers that that might be the case. But if that is the case, (we are not saying that it is), it may be that she has an alternative remedy against the Secretary of State. And it could be, (and again we only say it could be) that were she to withdraw her case here and now (as was her first wish) that she might prejudice her ability to claim against the Secretary of State. We do not say that she will necessarily succeed against the Secretary of State but that is one of the subjects on which advice should be sought from ACAS and, if she can get other professional advice, so much the better.[6]Having detected something arguable by way of possible error of law, we allow the matter to go forward to a full hearing. It could be that on reflection the notice of appeal could usefully be amended and we allow 21 days from today for an amendment to the notice of appeal. No Chairman's notes seem to be necessary. The case at the full hearing, if there is one, should be listed for an hour. And that is all the directions that we need give.