T J FABRICATIONS LTD v MR F A MALONEY [2001] UKEAT 33_01_1506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 33_01_1506Case No Appeal No. EAT/33/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
T J FABRICATIONS LTDAPPELLANTMR F A MALONEYRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 15 June 2001
[1]APPEARANCES For the Appellants MR S HEALY (of Counsel) Instructed By: Messrs Newbys Solicitors 100 Borough Road Middlesbrough Cleveland TS1 2HJ MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of a preliminary hearing, the appeal of T J Fabrications Ltd in the matter Mr F A Maloney against three respondents, first, Secretary of State for Trade and Industry; second, Tees Dock Fabrication Ltd (In Receivership) and, thirdly, T J Fabrications Ltd. The only person who is concerned at this stage is T J Fabrications Ltd, which has appeared today, at this preliminary hearing, by Mr Healy.[2]There are two Notices of Appeal before us. One is of 24 February 2000 and that is an appeal against a decision on 11 January 2000 at Stockton on Tees, a case the number of which ends 754/99 and where the Chairman, Mr J H Bloom (according to the Notice of Appeal):
"found in favour of Mr Maloney's case in the question of unfair dismissal by myself, awarding £4,197.00 to be paid to Mr Maloney."
And the grounds of appeal there, are:
"I feel that as I am the person who actually finished Mr Maloney and nobody else knew or heard the situation, I feel I should have been asked to attend the Tribunal, and give my evidence. After reading Mr Maloney's defence, I feel that all the points that were raised in that document are 100% false, I would have liked to have had the opportunity to question each and every paragraph, as I feel that the Tribunal only listened to Mr Maloney's evidence and not mine. If you require any witnesses to further my claim or evidence on the points raised by Mr Maloney, please contact me."
[3]The decision in question was sent to the parties on 1 February 2000 but only by way of Summary Reasons. That is the first Notice of Appeal. The second one is of 21 December 2000 and that is an appeal filled in as follows against:
"the decision of the Newcastle Employment Tribunal contained in the letter from the Newcastle Employment Tribunal dated 23 rd March 2000 refusing the Appellants request for extended reasons of the decision of the Employment Tribunal dated 11 th January 2000."
What is said in paragraph 6 of the second Notice of Appeal is this:
"By an Order made by the Honourable Mr Justice Lindsay in the Employment Appeal Tribunal 10 th October 2000 directed that the matter could not proceed on Summary Reasons and that the Appellant needed to make an immediate approach to the Employment Tribunal asking for Extended Reasons and refused an appeal to the Employment Appeal Tribunal against that refusal pursuant to Practice Direction 2(2)."
That is not quite what was said on 10 October. What was said on 10 October was this:
"Mr Hogg and TJF must realise that still it is inadequate for the appeal to go ahead on Summary Reasons only. As the letters have explained, there will need to be an immediate approach to the Employment Tribunal asking for extended reasons and, if they are refused, there will then have to be an appeal to the Employment Appeal Tribunal against that refusal."
It was, when the matter was before the Employment Appeal Tribunal on 10 October, inadequate because at that time there was still a prospect of Extended Reasons coming forward but since then the Employment Tribunal, on 27 November 2000, has confirmed its earlier refusal to give Extended Reasons by answering a request for them to be given by refusing them.[4]This second Notice of Appeal really leads nowhere save to open the route to the Employment Appeal Tribunal dealing with the first Notice of Appeal without being given Extended Reasons. The Employment Appeal Tribunal has a discretion so to do under Employment Appeal Tribunal Practice Direction 2(3). It can proceed on Summary Reasons if it sees fit and, of course, if Summary Reasons have been requested through the agency of the Employment Appeal Tribunal and still refused, well then, that tends towards exercising the discretion and to hear the matter on Summary Reasons only.[5]Whether an error can be detected in the Tribunal's deciding to give Extended Reasons I rather doubt, but whether the discretion to allow the matter to go forward on Summary Reasons only is a matter that we still need further information about I shall come on to. It is slightly baffling at the moment because the passage that we have read from the first Notice of Appeal says:
"I feel that the Tribunal only listened to Mr Maloney's evidence and not mine."
Now that suggests that Mr Hogg was there at the time and did give evidence but, against that, in another passage he says: "I feel I should have been asked to attend the Tribunal and give my evidence", and that suggests that he was not there at the time and hadn't even known of the hearing date.[6]What we need to know is this. Firstly, did Mr Hogg or any other officer or representative of the company, T J Fabrications, attend at the hearing on 11 January 2000? Secondly, did Mr Hogg or any other officer or representative of the company give evidence on the company's behalf on 11 January 2000? Thirdly, was T J Fabrications Ltd given notice of the hearing to take place on 11 January 2000 and, if so, when was that notice sent or received? Fourthly, if that notice was given to that company, was it merely some defect in the company's administration that led to neither Mr Hogg nor any other officer or representative of the company attending on 11 January, if it was the case that none did? Fifthly, was the company, if not appearing or represented on 11 January 2000, ever advised ahead of 11 January 2000 of the possibility that Mr Maloney's IT1 was likely to be amended so as no longer to assert only short employment not qualifying for unfair dismissal (namely, from 4 January 1999 to 5 June 1999) but rather to claim longer employment from 8 August 1997 to 5 June 1999 such as to qualify for unfair dismissal? Those are a number of subjects which need to be gone into.[7]Mr Hogg, or another person authorised to do so on behalf of the company, must swear a statement or affidavit on those subjects and can add any other subjects touching the merits of the grounds in paragraph 6 of the company's Notice of Appeal of 24 February 2001 and they must do that within 14 days, sending a copy, firstly, to the Employment Appeal Tribunal and, secondly, to Mr Maloney or his advisers. The matter can then come back, still as a preliminary hearing, but, one would then hope, on the basis of better information than we have at the moment.[8]In the meantime the Employment Appeal Tribunal will enquire of the Employment Tribunal what notice was given to T J Fabrications Ltd of the hearing of 11 January 2000 and also request the Chairman's notes of evidence given that day. In that way I would hope that when it does return, still as a preliminary hearing, then the matter can be dealt with on the basis of adequate information, which is not a basis on which it can be dealt with today.