MR P ZIETSMAN & MR P DU TOIT T/A BERKSHIRE ORTHODONTICS v MISS J STUBBINGTON [2001] UKEAT 345_00_0907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 345_00_0907Case No Appeal No. EAT/345/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P ZIETSMAN & MR P DU TOIT T/A BERKSHIRE ORTHODONTICSAPPELLANTMISS J STUBBINGTONRESPONDENT
Before
His Honour Judge Peter Clark Mrs D M Palmer Ms B SwitzerDate 9 July 2001
[1]APPEARANCES For the Appellant MR COPPEL (Of Counsel) Instructed by Messrs Leuty & Lynch Solocitors 3&4 Market Place Wokingham Berkshire RG40 1AL For the Respondent NO ATTENDANCE ON OR ON BEHALF OF RESPONDENT JUDGE PETER CLARK The Applicant before the Reading Employment Tribunal, Miss Stubbington, was employed in a dental practice trading under the style Berkshire Orthodontics (the firm) as practice manager at that firm's premises at 37 Crossway House, High Street, Bracknell Berkshire (the Premises). Her employment commenced on 3 March 1997 and ended on 25 March 1999 when the practice was effectively closed down following an intervention by the local health authority. From and since April 1998 the partners in the firm were Messrs Zietsman & du Toit.[2]Following termination of her employment she presented an Originating Application to the Employment Tribunal on 7 June 1999. She complained of unfair dismissal and claimed a redundancy payment, naming the firm as her employer and giving her employer's full address at 37 Crossway House, including the post code.[3]No appearance was entered by or on behalf of the firm and on 10 October 1999 the case came on for hearing before a chairman, Mr A M Snelson, sitting alone at Reading. The Applicant appeared in person; the Respondent firm was not present.[4]As appears from the Chairman's decision with summary reasons promulgated on 18 October 1999 (the original decision) the Chairman permitted an amendment to the Originating Application, naming as Respondent the 2 partners trading as Berkshire Orthodontics. He went on to hear oral evidence from the Applicant. Based on that evidence he concluded that she had been dismissed by the Respondent; that the dismissal was both wrongful at common law and unfair, and he went on to award damages for wrongful dismissal in the sum of £760 and a further £8,280 compensation for unfair dismissal.[5]On 28 October Mr du Toit wrote to the Employment Tribunal. He said that he had received notification of the Employment Tribunal decision on 22 October. He did not know about the Tribunal case until that date. He applied for a review of the original decision.[6]A review hearing took place before a full Employment Tribunal, chaired by Mr Snelson, on 21 January 2000. Both the Applicant and Mr du Toit appeared without representation.[7]In a review decision promulgated with Extended Reasons on 10 February 2000 (the review decision) the Employment Tribunal identified the relevant provision in the Employment Tribunal Rules of Procedure 1993 as Rule 11(1)(b). The Employment Tribunal has power to review its decision on the ground that "(b) a party did not receive notice of the proceedings."[8]They heard evidence from Mr du Toit, none of which they rejected (reasons, paragraph 6). They concluded that the proceedings were served at the Bracknell premises of which Mr du Toit was and remained a lessee. He had ceased to practice from that address after his return from holiday in South Africa on 12 April 1999. By then Mr Zietsman had left the scene following the local health authority intervention. Mr du Toit had recovered some patient files which he had transferred to his personal practice in Fleet, Hampshire. Having done so he did not visit the Bracknell premises, nor did he make arrangements for mail to be forwarded to him. They regarded that as thoroughly irresponsible conduct, to which his ignorance of the proceedings was wholly attributable. In these circumstances they declined to review the original decision.[9]Against the review decision Mr du Toit has appealed. The appeal was permitted to proceed to a full hearing at a Preliminary Hearing held on 27 September 2000. Following that Preliminary Hearing there has been correspondence with Miss Stubbington, now Respondent to the Appeal, which may fairly be described as equivocal. Attempts have been made to ascertain whether or not she opposes the appeal. In her most recent letter, dated 12 June 2001, she states:
"I am unable to attend the Employment Appeal Tribunal on 21 June 2001. I should however like the court to know that I do not feel this appeal is justified."
[10]In these circumstances we do not take her to have given her consent to the appeal being allowed and indeed we are told by Mr Coppel that she did not sign and return a form of consent order sent to her by his Instructing Solicitors, but even had she done so that would not be the end of the matter. Our practice is clearly set out at paragraph 13(4) of the Practice Direction issued by Mummery P on 15 April 1996. That provision is based on the guidance given by the former President in J Sainsbury Plc v Moger [1994] ICR 800. We shall not allow an appeal by consent, reversing a reasoned Employment Tribunal decision, unless we are satisfied that there are good reasons for making such an order. In these circumstances we have looked carefully at the submissions made by Mr Coppel in support of the appeal, albeit without the benefit of argument to the contrary. He takes 3 points:(1) that the Employment Tribunal failed to consider the relevant statutory rules which govern the question as to whether the Respondent below, Mr du Toit received the proceedings for the purpose of Rule 11(1)(b)(2) that the Employment Tribunal's reasoning was inconsistent with those provisions(3) that the Employment Tribunal's original decision should be reviewed in order to avert a breach of the Respondent's right of access to the Court under Article 6 of the European Convention on Human Rights contained now in the Human Rights Act 1998.[11]First, we accept Mr Coppel's submission that(a) given the Employment Tribunal's acceptance of Mr du Toit's evidence that he had not actually received the Originating Application or Notice of Hearing for the original hearing, the question as to whether he is deemed to have received either or both of those documents for the purpose of Rule 11(1)(b) is to be determined by the statutory provisions contained in Rule 20(3)(c) of the 1993 Rules, read in conjunction with Section 7 of the Interpretation Act 1978. See Migwain Ltd v TGWU [1979] ICR 597; followed in T & D Transport v Limburn [1987] ICR 696, and(b) on the face of the Employment Tribunal's reasons, both in the original decision and more particularly the review decision, there is no specific reference to either of those provisions.[12]The real question, subject to Mr Coppel's point under Article 6 to which we shall return, is whether the Employment Tribunal's reasoning in the review decision is inconsistent with the proper application of those provisions.[13]Rule 20(3) provides "All notices and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post … to (c) in the case of a notice or document directed to a party –(i) the address specified in his originating application or notice of appearance to which notices and documents are to be sent, … or(ii) if no such address has been specified, or if a notice sent to such an address has been returned, to any other known address or place of business in the United Kingdom … Section 7 of the Interpretation Act provides "Where an Act authorises or requires any documents to be sent by post (whether the expression 'serve' or the expression 'give' 'send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be affected by properly addressing, prepaying, and posting a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."[14]Mr Coppel submits that the deeming provision under Section 7 can only arise where the letter is properly addressed. That must be correct. He goes on to contend that in this case the Crossway House address given on the Originating Application, and to which a copy of that application and the subsequent Notice of Hearing for 1 October 1999 was sent by the Employment Tribunal was not the proper address of the firm or the partners.[15]He focuses on Rule 20(3)(c) and submits that paragraph (i) cannot apply, since that refers to the address specified in his Originating Application or [his] Notice of Appearance. It does not extend to the address for the Respondent given by the Applicant in his Originating Application. Pausing there, we note that in Harvey on Industrial Relations and Employment Law, Volume 5, paragraph T375 reference is made to a decision of an Employment Tribunal sitting at Ashford under the chairmanship of Mr B A Hepple in Knulty v Eloc [1997] ICR 827 for the proposition that notice sent to a Respondent at an address specified by the Applicant in his Originating Application was valid service under the equivalent rule to Rule 20(3)(c)(i) in the 1974 Rules (Rule 14(1)). The learned editors go on to doubt that proposition.[16]In our judgment that proposition is incorrect and we would refer to Migwain , 601H, where Slynn J said:
"We accept the submission which is made that the reference to the address specified in the Originating Application is the address of the Applicant and the address of the Respondent is the address of the Respondent which appears in the Notice of Appearance, if a Notice of Appearance is entered."
[17]We respectfully agree and thus uphold Mr Coppel's submission on paragraph (i) of Rule 20(3)(c).[18]As to paragraph (ii), Mr Coppel draws attention to the words "any other known address or place of business". He submits that that expression means a current address or place of business. He relies upon the Court of Appeal decisions in Willowgreen v Smithers [1994] 1WLR 832 and the earlier case of White v Weston [1968] 2QB, 647 for the proposition that, on the findings of this Employment Tribunal, it is not sufficient that Mr du Toit remained a lessee of the Crossway House premises at all relevant times; it must be an address at which the Respondent currently carries on business. On the face of the Originating Application it is clear that the Applicant knew that the firm had ceased to carry on business at Crossway House by the time that she presented her Originating Application.[19]During the course of argument we put to Mr Coppel the proposition that Rule 20(3)(c)(ii) included service at the last known place of business, by analogy with the table appearing after Part 6.5(6) of the CPR, and before those Rules, RSC Order 10 Rule 1(2)(a) ("usual or last known address"). In response, he submitted that if Rule 20(3)(c)(ii) permitted posting to the last known address or place of business, express words to that effect ought to appear in the rule. They do not. We should therefore adopt his literal construction.[20]As we have observed, we have not had the benefit of argument on behalf of the Applicant in this appeal and accordingly we reserve judgement in this case in order to carry out further researches of our own into the arguments addressed to us by Mr Coppel. No new points have arisen requiring further argument.[21]We considered the relevant County Court Rules at the time when the 1993 Employment Tribunal Rules were introduced.[22]Order 7 Rule 1 of the County Court Rules 1981 provided:
"(1) where by virtue of these rules any document is required to be served on any person and no other mode of service is provided by any Act or rule, the document may be served – (a) … (ii) in the case of a proprietor of a business, by … sending it by first-class post to his last known place of business;"
[23]The last provision echoes the provisions of the RSC and CPR to which we have earlier referred.[24]Other modes of service were provided for in the 1981 Rules. In particular, Rule 7.10 provided; "(1) Subject to … service of a Summons shall be effected – (b) by an officer of the Court sending it by first-class post to the defendant at the address stated in the request for the Summons."[25]It was that particular provision which was considered by the Court of Appeal in Willowgreen . There, the Defendant was the lessee of a flat in which he had never lived. It had been occupied, first by his mother and step-father and after her death by the step-father alone until he left or died. Thereafter the lessor filed a request to the County Court for the issue of a Summons against the Defendant, seeking forfeiture of the lease and possession. The Summons was sent by post to the Defendant at the flat and never came to his notice.[26]The Court of Appeal held that the proceedings were not properly served and must be set aside. It was not enough, as the County Court Judge had held, that the flat had a "direct and immediate connection" with the Defendant.[27]Reference was made to the judgments in White v Weston . There, service of a Summons on a Defendant at an address which he vacated some 5 months earlier was held not to be good service.[28]It seems to us that if Mr Coppel is correct in submitting that the expression "any other known address or place of business" does not include a last known address or place of business, then based on the Court of Appeal authority to which we have been referred, post sent to Crossways House was not "properly addressed" within the meaning of Section 7 of the Interpretation Act and that accordingly Mr du Toit cannot be deemed to have received Notice of the Proceedings for the purposes of Rule 11(1)(b), accepting that he did not have actual notice. Conversely, if Rule 20(3)(c)(ii) includes, as a proper address, the last known place of business, then he is deemed to have had notice, subject to his rebutting the presumption, a question to which we shall return.[29]In order to decide this novel point of construction we have gone back to the Rules preceding the 1993 Employment Tribunal Rules. The 1974 Rules were considered by the Employment Appeal Tribunal in Migwain.

(e) provided:

"in the case of a document directed to a party, his address for service specified in the Originating Application or in a Notice of Appearance … or (if no address for service is so specified), his last known address or place of business in the United Kingdom …"
[30]That provision was reproduced in the same form in Rule 17(3)(d) of the 1985 Rules.[31]Given that legislative history and the wider civil rules of procedure, the question for us is whether the expression "any other known address or place of business" in Rule 20(c)(ii) of the 1993 Rules includes or excludes the earlier provisions as to the last known place of business. In our view, as a matter of ordinary construction, it includes the earlier provisions. We say that in the context of employment protection legislation. It will often be the case that an employer goes out of business and ceases to trade from the premises at which the former employee worked. In such circumstances where is the employee to direct his claim? It must be to the last known place of business. We cannot believe that in drafting the 1993 Rules it was thought that good service required service at a current place of business to the exclusion of the last known place of business.[32]That brings us to Mr Coppel's Aticle 6 point. He contends that the Appellant's right to a fair trial requires us to construe Rule 20(3)(c)(ii) in the literal way which he has advanced. He has cited European Court of Human Rights authority in support of that proposition.[33]We have reconsidered our construction adverse to Mr Coppel in the light of that proposition but we are not persuaded that it requires revision. The right to a fair trial applies to both Applicant and Respondent. Were we to find that Rule 20(3)(c)(ii) required a current, as opposed to a last known address or place of business that would place Applicants in real difficulty in establishing an address for service of the proceedings. Conversely, as the Employment Tribunal pointed out in the present case, it is a simple matter for the employer to make arrangements for collection or redirection of post addressed to his last place of business.[34]In these circumstances we find that these proceedings were "properly addressed" to the firm's last known place of business. That leaves one final point. Can the Appellant prove that service was not effected in this case under Section 7 of the Interpretation Act? Applying the approach of the Employment Appeal Tribunal in Migwain and T & D Transport we are satisfied that he cannot. Indeed, the Employment Tribunal found as a fact (review decision reasons, paragraph 7(2)) that the proceedings were served at the Bracknell premises of which Mr du Toit was, and is, a lessee. There was no evidence before the Employment Tribunal that the proceedings and notice of hearing were not delivered in the ordinary course of post, only that Mr du Toit did not actually received them.[35]In these circumstances, notwithstanding the Employment Tribunal's failure to refer to the relevant statutory provisions in their review decision reasons, we are satisfied that, applying the law correctly as we have found it to be, the result was plainly was and unarguably right on their findings of fact ( Dobie v Burns International [1984] ICR 812 ). Consequently this appeal is dismissed.