F & J ARPINO LTD v MR M ENTI [2001] UKEAT 1459_00_0409

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1459_00_0409Case No Appeal No. EAT/1459/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
F & J ARPINO LTDAPPELLANTMR M ENTIRESPONDENT
Before
Mr Recorder LangstaffSir Gavin LairdDate 4 September 2001
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent The Respondent debarred From defending the appeal MR RECORDER LANGSTAFF QC We are in the unusual position of having a live appeal, but no representative for either the Appellant or the Respondent. The Respondent was debarred by order of this Tribunal of 16 February of this year, from defending the appeal. That does not, however, determine the matter because the grounds of appeal must still be made out.[2]So far as the Appellant is concerned, we have had this morning a letter which indicates that the Appellant does not intend to be present at the hearing; it is signed by someone on behalf of the Appellant company and adds in writing:
"Mr Johar is gone abroad"
Mr Johar was the individual in the service of the Appellant who dealt with the matters giving rise to the application and consequent appeal and upon whose evidence and recollection much of the appeal would depend.[3]What happened was this. The Employment Tribunal at London Central by a Decision promulgated on 17 November 2000 held that it had no jurisdiction to hear the employee's complaint of unfair dismissal because he had insufficient qualifying service. It proceeded however to award £100 to the employee in lieu of notice.[4]The Notice of Appeal raises as the ground of appeal that the Applicant was awarded £100 as breach of contract when in fact the claim was for unfair dismissal, but draws attention within the documents which we have to a letter of 2 October 2000 addressed to the employer which says as follows, at paragraph 1:
"The Chairman who has been dealing with this case has considered the documents and directed that there should be a Preliminary Hearing."
It then says where and when it will take place, and then materially this:
"This hearing will be limited to consideration of the following preliminary issue: (i) Whether, having regard to the one year qualifying period for unfair dismissal contained in section 108 of the Employment Rights Act 1996 (as amended), the Applicant had the right at the effective date of termination not to be unfairly dismissed by the Respondent."
[5]The hearing then was a preliminary hearing on that issue. The complaint of the Appellant, as we understand it, is that having said that that was the one issue for the Tribunal, the Tribunal in its Decision dealt with another issue, that is the question of entitlement to one week's money in lieu of notice.[6]To make that decision the Tribunal had to construe the Originating Application as containing a complaint of non-payment and secondly, had to proceed to hear it. They did so despite the fact that the employee Applicant did not attend at the Tribunal. We have considered the letter of 2 October. We have seen no record in the Employment Tribunal's Decision that there was any agreement on behalf of the employer to extend the subject matter of the hearing, beyond the one issue to which the attention of the parties was directed. It is unlikely that his consent could be inferred and if it had happened, we would have expected it to be recorded. Accordingly it seems that a decision on an issue was reached at a hearing in which it had been indicated there would be no decision on that issue.[7]Accordingly we think that this appeal has to be allowed and that the question whether any further sum is due to the Respondent employee must necessarily be remitted to the Employment Tribunal to determine. We have no particular confidence that either the employee or the employer will be interested in the ultimate result of pursuing that application further, but it is a matter for the Employment Tribunal to determine whether, after contacting the employee, he wishes to pursue his case in that respect. We say that because he has not appeared either before the Tribunal below nor before this Tribunal, and indeed has shown, as the Order debarring him from responding indicates, no interest in pursuing a defence to this appeal.[8]For those reasons, this appeal must be allowed and the case remitted, even if the result will be, as we suspect, somewhat technical.