MR R MUSUNGAY & MRS G MUSUNGAY v MISS A L LONG [2001] UKEAT 1310_00_1506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1310_00_1506Case No Appeal No. EAT/1310/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R MUSUNGAY & MRS G MUSUNGAYAPPELLANTMISS A L LONGRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 15 June 2001
[1]APPEARANCES For the Appellants NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS MR JUSTICE LINDSAY (PRESIDENT) This is an adjourned preliminary hearing of the matter Miss A L Long v Mr & Mrs Musungay. No one attends today on behalf of Mr & Mrs Musungay. Miss Hill is here under the ELAAS scheme but, of course, it is a feature of the ELAAS scheme that unless the representative from ELAAS can meet the clients, the representative of ELAAS cannot become the representative of the party and, accordingly, although Miss Hill has briefly helped us with the immediate background to the matter, she is unable to address us on behalf of the Musungays as a truly authorised representative on behalf of a client. There is, as we shall mention, some reason to believe that Mr & Mrs Musungay would find it difficult to be here today. We have a note from them of 30 May that says, "It is my intention to be present at the hearing" but the footnote says, "for visa reasons we will not be able to attend on the date as mentioned for we need to extend our visas and this takes place outside England. We would like to ask for another date as from July the 15." We also have an even more recent document from them, received on 14 June, that responds to the letter of the Employment Appeal Tribunal that said this:
"Your application" (that is to say the little note I have just read that asks for the matter to go to a date as from July 15) "was referred to the Registrar who has directed that the matter remain in the list for hearing on 15 June 2001. You may of course wish to renew these submissions by preliminary point on this date."
But the response, received, as I say, on 14 June, does nothing to set out more fully the reasons for an adjournment and perhaps, more importantly, simply repeats an argument that the Employment Appeal Tribunal had in front of it in any case, that was, in effect, that there never was an employer-employee relationship between Miss Long and the Musungays. If it had seemed from recent communications that the Musungays might have been able to do something other than merely repeat arguments that were already in front of the Employment Appeal Tribunal, then we would have been the first to recognise that it would be prudent to have an adjournment. But, as nothing has been done but to repeat what is already in front of us and there is no, as it seems, prospect of anything other than that occurring were there to be an adjournment, we have thought it right to go ahead notwithstanding the absence of the appellants.[2]The history of the matter is that on 26 June 2000, Miss Long presented an IT1 for non-payment of wages for the period from "1 May 2000 to the present." She said:
"After undertaking duties assigned to me in my new employment with Mr & Mrs Musungay (which commenced 01/05/200, and is detailed in my contract of employment) I am still awaiting payment of my monthly wages. I have telephoned Mr & Mrs Musungay nearly every working day and discussed matters with Mrs Musungay. Every time I contact her she informs me there had been a delay in accessing the business funds."
A little later she says:
"My first monthly wage was due no later than 31 May 2000. I have expressed my concern to the Musungays many times, and every time they have been very reassuring and have promised me they will pay me. I have asked them if they wish to terminate my employment and they have said definitely not, they want to keep my employment going with them. They have stated that as I am still working and employed by them, I will be due 2 months wages by 31/6/00. I have been very patient so far and wish that I didn't have to take this matter so far, but my employers have left me no choice. I am desperate to recover all of this money that I am due."
[3]That is the IT1 as received by the Employment Tribunal on 26 June 2000. Assuming that it was fairly promptly sent to the respondents, Mr & Mrs Musungay (and their address was given as a London address) they would have 21 days, say from 29 June, to lodge a Notice of Appearance. That period would have expired in July, around about the 20 th . But there was no Notice of Appearance until 25 July; in other words, the Notice of Appearance was out time and the case by then had already been marked to go forward, as these cases are when there has been no timely Notice of Appearance, "No appearance entered". The Musungays rôle in the case was thus restricted to that which is described in Employment Tribunal Rule 3(2). In that way it came before a Chairman alone, Mr G W Davis, at London South on 11 August 2000. There is no hint that Mr & Mrs Musungay or either of them attended the hearing or asked for their late Notice of Appearance to be validated. The Chairman heard evidence from Miss Long. We have got the Chairman's notes; they are succinct and one can easily read the whole of them:
" CHAIRMAN'S NOTES OF EVIDENCE For Applicant: In person For Respondents: Appearance Not Entered AMIE LOUISE LONG (sworn) :- I worked for the Respondents from 1 May 2000 until 30 June 2000. I was entitled to an annual salary of £22,200 which represented a net amount of £1,396 per month. I was also entitled to 20 days' holiday per year. During the period of my employment, I did not receive any money for wages, nor did I receive any holiday or any holiday pay in lieu. Cross-examination: Nil. Questions by Tribunal: Nil. The above is an accurate copy of my notes of evidence taken on 11 August 2000 in the case of Miss A L Long v Mr R Musungay and Mrs G Musungay."
And that is signed by the Chairman, Mr Davis.[4]The Tribunal decision was accordingly:
"The decision of the Tribunal is that the Applicant has suffered an unlawful deduction from her wages. The Respondents are ordered to pay to the Applicant the net amount of the unlawful deduction, namely £3017. The Respondents must account to the relevant authorities for the appropriate tax and national insurance contributions."
And in paragraphs 4, 5 and 6 of the decision, the Chairman says:
"4. The Applicant has suffered an unlawful deduction from wages and is entitled to two months net salary at £1396 per month making a total of £2792. 5. The Applicant is also entitled to be paid for the accumulated 3.3 days holiday representing a net amount of £225. The total amount of the unlawful deductions from wages is £3017 and the Respondents are ordered to pay the sum of £3017 to the Applicant."
That decision was sent to the parties on 7 September 2000. On 11 October a Notice of Appeal was received from the Musungays which says in its paragraph 6:
"The grounds upon which this appeal is brought are that the employment tribunal erred in law in that (here set out in paragraphs the various grounds of appeal):- It was completed in handwriting as thus: "
The franchise for which she was employed never took place. She never worked for us. She was working for her previous employer in his premises." And that is dated 7 October 2000, received on 11 October 2000.[5]The appellants have since sought to amplify their view that Miss Long never worked for them and the Employment Appeal Tribunal has received a skeleton argument of 21 March 2001 to such effect. On 30 March 2001 the matter came before the Employment Appeal Tribunal and Mr & Mrs Musungay were represented by Counsel under the ELAAS scheme and the matter was adjourned. On 30 May the appellants wrote the note that I read earlier about their not being able to attend on today's date. On 8 June, as I have already mentioned, the Tribunal indicated that the Registrar had directed that the matter should be continued to be listed for hearing today and, finally, there is the note received on 14 June which I described earlier as really doing no more than reiterating the argument that had earlier been asserted that Miss Long had never become their employee but rather had continued to work for someone else.[6]That, of course, was very much a question of fact. It was for the Employment Tribunal to hear evidence upon and to form a view upon based on that evidence. The Tribunal manifestly heard and believed the evidence of Miss Long that she was, indeed, employed by the Musungays. The Tribunal was entitled to do that. We only can deal with errors of law; we cannot over-emphasise that we cannot reopen the facts except where the finding of fact is so unjustified by the evidence that it amounts to an error of law. But, given that only Miss Long gave evidence and given the clarity with which she gave it, as appears from the Chairman's note, we cannot see any hope of an argument that there is an error of law in the findings of fact which the Tribunal made. If the Musungays feel that they could have presented a better case to the opposite effect, namely, that Miss Long was never employed by them or had been throughout employed by someone else, well then, they have no one but themselves to blame because, as far as we can judge, it was entirely their own fault that their Notice of Appearance was lodged out of time. They failed to apply for an extension of time for their Notice of Appearance and it looks as if it is entirely clear that they didn't attend at the hearing either.[7]One way or another, we detect no arguable error of law and, accordingly, dismiss the appeal even at this preliminary stage.