CONCORDE BUILDING PRESERVATION LTD v MR T SMITH [2001] UKEAT 1247_00_2603
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK On 25 January 2000 the Applicant, Mr Smith, presented a complaint of wrongful dismissal to the Employment Tribunal. He named as Respondent his former employer Concorde Building Preservation Ltd and gave as their address Unit 35, Dalton Mills, Dalton Lane, Keighley BD21 4JH.[2]A copy of the Originating Application was sent to the Respondent at that address by post, it was not returned, there was no acknowledgement and no appearance was entered by or on behalf of the Respondent.[3]On 14 April 2000 the matter came on for hearing before a Chairman, Mr P A Morris, sitting alone at Leeds. The Applicant appeared in person. There was no appearance by or on behalf of the Respondent.[4]By a decision with Extended Reasons promulgated on 5 May the Chairman found in favour of the Applicant and awarded him damages in the sum of £256.06.[5]By a letter written on Concorde notepaper, showing the Dalton Lane address, dated 16 May and signed by Mr A M Sharp a director of the Company, the Respondent asked for a review on the basis that the Company was not made aware of the date and place of the Employment Tribunal hearing.[6]The Chairman ordered a review hearing to take place on 16 June. On that occasion the Applicant was represented by a Citizens Advice Bureau worker, Ms James. The Respondent did not attend.[7]By a decision with Extended Reasons dated 5 July the Chairman refused the application on behalf of the Respondent to enter a Notice of Appearance out of time and refused the review application. He took the view that proper notice for the purposes of Rule 20 of the Employment Tribunal Rules of Procedure 1993 had been given to the Respondent and he took into account particularly that the letter applying for the review was written on the Company's notepaper giving the address to which the copy of Originating Application and subsequently the Notice of Hearing had been sent.[8]On 21 June Mr Sharp wrote to the Employment Tribunal, complaining that the Employment Tribunal documents ought to have been sent to the Company's registered office at his home address in Keighley. He said that the Company had ceased trading from the Dalton Lane address some months previously.[9]On 24 August 2000 the Respondent entered this appeal against the original decision, out of time. However, that Notice was treated as an appeal against the review decision, for which purpose it was within time.[10]Today, there is no appearance or representation on behalf of the Company. Mr Sharp wrote to the Employment Appeal Tribunal on 20 February, stating that the Company have been dissolved. We have seen a letter from Companies House dated 1 November 2000 informing the Directors of the Company that it would be dissolved pursuant to Section 652(a) of the Companies Act 1985. We pause to observe that that does not necessarily render the Company insolvent within the meaning of Section 183 of the Employment Rights Act 1996. See Secretary of State for Trade and Industry v Walden [2000] IRLR 168.[11]In these circumstances we have considered the Appeal on paper. It seems to us that the real question in the Appeal against the review decision is whether the Chairman was entitled to take the view that proper notice had been served on the Respondent for the purposes of the original hearing.[12]We have taken into account the provisions of Rule 20(3)(c) and we have come to the conclusion that service was deemed to have taken place in the absence of evidence to the contrary. See the Interpretation Act 1978 Section 7 and Migurain Ltd v Transport & General Workers Union [1979] ICR 597.[13]It is a particular feature of this case that in complaining that the documentation had been sent by the Tribunal to the wrong address, the Company's representative, Mr Sharp, wrote on notepaper giving the address complained of.[14]In these circumstances we can see no merit in this Appeal and consequently it must be dismissed.