MR Y CHAN v CELTIC CAULDRON [2001] UKEAT 224_01_2506

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 224_01_2506

Case No Appeal No. EAT/224/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR Y CHANAPPELLANT

CELTIC CAULDRONRESPONDENT

Before

His Honour Judge Peter Clark Mrs A Gallico Mr G H Wright

Date 25 June 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT JUDGE PETER CLARK The precise purpose of this appeal, contained in a notice dated 30 January 2001, is opaque. We begin with the history, as we understand it, the Appellant not having appeared today to prosecute his appeal.

[2]He was employed by the Respondent as a kitchen assistant at their premises in Cardiff from July or early August 1999 until February 2000. The uncertainty as to precise dates arises from the contentions set out in forms ET1 and ET1. In the event the Cardiff Employment Tribunal made no finding as to the dates of employment. It matters not, on any view he was employed for less than the 1 year qualifying period necessary for unfair dismissal protection under Section 108(1) of the Employment Rights Act 1996 .

[3]On 10 August 2000, sometime after the primary limitation period had expired, the Appellant presented an Originating Application to the Employment Tribunal, describing his complaint in box 1 as:

"Unfair, unequal race"

[4]In his particulars of complaint he appears to be saying that he could not return to work for the Respondent because he feared attack by a member of staff. The Respondent entered a Notice of Appearance resisting the claim.

[5]On 5 January 2001 a pre-hearing review took place before a Chairman alone, Dr Rachel Davies. She concluded, on the basis of the originating application and subsequent correspondence from the Appellant, that the complaint had no reasonable prospect of success. 6. Because the Appellant did not attend the hearing and she was unable to assess his means, she did not order him to pay a deposit but in a decision with Summary Reasons dated 10 January, warned the Appellant that if he proceeded with his claim and failed, he may be subject to a costs order.

[7]Further, on 5 January the Tribunal wrote to the Appellant pointing out that his complaint was not presented within three months of the termination of his employment and enquired whether he wished to proceed. It seems that he answered in the affirmative, as well as lodging this appeal, because by letter of 7 February the parties were informed that a hearing would be fixed to determine the limitation issue.

[8]A hearing at Cardiff took place on 28 February. It seems that the only issue between the parties then concerned non-payment of one week's wages. The hearing was adjourned until 3 April but in the meantime the Appellant informed the Tribunal that his outstanding pay had been received; neither party attended on the adjourned hearing and the Tribunal treated the proceedings as having been withdrawn. Accordingly, the application was dismissed by a decision dated 6 April 2001.

[9]Against that background we return to this appeal. It was quite pointless in the first instance; the only decisions or orders that had been made by the Tribunal, by 30 January 2001, were firstly an opinion expressed by the Chairman at the pre-hearing review, that the claim had no reasonable prospect of success and secondly a direction to the Appellant to indicate in seven days whether or not he wished to pursue his complaint.

[10]In so far as he had a complaint, it was pursued and the matter was resolved between the parties, so that today we are left with an appeal which is wholly academic. In these circumstances we shall dismiss it.