MR PAUL DRAKE T/A PROCUTS v MISS T L POWELL [2001] UKEAT 512_00_2601

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 512_00_2601

Case No Appeal No. EAT/512/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR PAUL DRAKE T/A PROCUTSAPPELLANT

MISS T L POWELLRESPONDENT

Before

Mr Justice Lindsay

Date 26 January 2001

[1]APPEARANCES For the Appellant MR S LAKHA (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Mr Paul Drake, the erstwhile employer, in the matter Miss T L Powell v Mr Paul Drake . The difficulties that we shall come on to deal with arise chiefly because Mr Drake is resident, and was at the time of the material hearing resident, in the United States of America. Today, Mr Shabbir Lakha has addressed us under the ELAAS scheme. Strictly speaking, it may well be that we cannot take Mr Lakha to be representing Mr Drake under the ELAAS scheme because the ELAAS scheme contemplates and requires a meeting between Counsel and the client. Because Mr Drake has been at all material times in the United States there has not been that meeting. However, we have permitted and indeed welcomed Mr Lakha addressing us as if representing Mr Drake and we are grateful to him for his argument, both in writing by way of skeleton argument and in oral form.

[2]The chronology begins with the 12th November 1999 when Miss Powell lodged an IT1 against Mr Drake for unfair dismissal and failure to provide written reasons for dismissal and for unauthorised deductions from wages. She claimed to have been employed from 16th June 1997 to 18th September 1999. It seems, although it is not entirely clear from our papers, that there was some amendment to her IT1 shortly after it was presented.

[3]On 12th December 1999 Mr Drake lodged an IT3 claiming that Miss Powell had been dismissed for misconduct, indeed, for gross misconduct. He gave an address in Massachusetts as his address and in Box 2 of his IT3, which is headed "If your require documents and notices to be sent to a representative or any other address in the United Kingdom please give details", he said:

"As above [ which is a reference to his address in Massachusetts ]: I have no representatives in UK. I am not domicile any more in UK. Please allow min. 5 working days for post to be received, I wish case to be heard ex-parte."

In Box 3 "Due you intend to resist the application?" he said, in effect, yes, because he marked the box yes and he said:

"I would like to apply for case to be heard ex-parte."

On the next page "Give particulars of the grounds on which you intend to resist the application" he says:

"Please note I wish the case to be heard ex-parte as I cannot defend myself in person as I am resident in USA"

[4]On 1st March 2000 there was a hearing at the Employment Tribunal at Southampton under the chairmanship of Mr J G Hollow and, as Mr Drake has anticipated in the forms I have quoted from, he did not attend nor was he represented.

[5]On 7th March 2000 the decision, which was unanimous on behalf of Mr J G Hollow as Chairman and Mr R Cornfoot and Mr P Glasspool as lay members, was sent to the parties. It was:

"1. The Applicant was unfairly dismissed by the Respondent. 2. The Tribunal makes a Basic Award in the sum of £440.00. 3. The Tribunal makes a Compensatory Award of £11,047.62. 4. The Recoupment Regulations do not apply. 5. The Tribunal declares that the Respondent failed, without reasonable excuse, to supply a written statement of the reasons for the Applicant's dismissal and awards the Applicant the two weeks' pay in the sum of £500.00 6. The claim for unfair dismissal for assertion of a statutory right is dismissed on withdrawal by the Applicant. 7. The Respondent is ordered to pay the aggregate of the above sums to the Applicant."

[6]On 20th March 2000 Mr Drake applied in writing for the decision to be reviewed. On 3rd May 2000 the Chairman refused the review on the ground that it had no reasonable prospect of success and there has no appeal against the failure to review.

[7]On 18th April 2000, which, I think, is the last of the 42 days permitted for a timely appeal, the Employment Appeal Tribunal received two Notices of Appeal from Mr Drake. They appeal only against the substantive decision sent to the parties on 7th March, but they respectively appeal both against liability and against remedy.

[8]In the original form one of the Notices of Appeal alleged bias against the Employment Tribunal and in particular against the Chairman. As is provided for in the Employment Appeal Tribunal Practice Direction 1996 , when an allegation of that kind is to be taken further it is usual to require an affidavit from the complainant so that the affidavit can then be sent to the Chairman or lay member concerned for comment.

[9]On 10th July 2000 the Registrar made an order as follows:

"UPON the failure of the Appellant to provide a sworn affidavit in accordance with paragraph 9 of the Practice Direction 1996 AND UPON the failure of the Appellant to respond to EAT letters dated the 3rd day of May 2000 and the 8th day of June 2000 IT IS ORDERED that unless an affidavit is received by the EAT within 28 days of the date of this Order all allegations of bias or improper conduct contained in the Notice of Appeal will be struck out"

On 12th October 2000 there was a further order that said:

"AND UPON the failure of the Appellant to comply with the Order of the Registrar made on 10th July 2000 IT IS ORDERED that all allegations of bias and improper conduct contained in the Notice of Appeal are hereby struck out"

Neither of those orders was, it seems, appealed against and accordingly the passages in the Notices of Appeal that related to misconduct or bias on the part of the tribunal below were struck out.

[10]Before going into more detail to Mr Drake's complaints, which at several points depend upon the difficulties inherent in a case where the party is abroad and is not represented in this country, it is necessary to refer to some, at least, of the relevant rules. By rules I am referring to the Employment Tribunal (Constitution etc) Regulations 1993 , Schedule 1. Rule 3(1) says:

"A respondent shall, within 21 days of receiving the copy of the originating application, enter an appearance to the proceedings by presenting to the Secretary a written notice of appearance- (a) setting out his full name and address and, if different, an address within the United Kingdom to which he requires notices and documents relating to the proceedings to be sent;"

There is, it seems, no mechanism directly provided for in the Rules for the provision of an address outside the United Kingdom. A party can invite the other side to be interrogated in writing, Rule 4(3) says:

"A tribunal may, on the application of a party made by notice to the Secretary or of its own motion, require a party in writing to furnish to the tribunal a written answer to any question if it considers- (a) that the answer of the party to that question may help to clarify any issue likely to arise for determination in the proceedings, and (b) that it would be likely to assist the progress of the proceedings for that answer to be available to the tribunal before the hearing, and may appoint the time within which the written answer is to be furnished. …"

Rule 8(5) says:

"If a party wishes to submit representations in writing for consideration by a tribunal at the hearing of the originating application he shall present his representations to the Secretary not less than 7 days before the hearing and shall at the same time send a copy to each other party."

Rule 9 has material provisions. Rule 9(1) says:

"The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."

Rule 9(2) provides:

"Subject to paragraph (1), at the hearing of the originating application a party shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the tribunal."

Rule 9(3):

"If a party fails to attend or be represented at the time and place fixed for the hearing the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representation in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."

So there is a mechanism there for dealing with cases where a party does not attend.

(c) (ii) says:

"All notice and documents required or authorised by these rules to be sent or given to any person hereinafter mentioned may be sent by post (subject to paragraph (5)) or delivered to or at- (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 in a notice under paragraph (4) 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 or, if the party is a corporate body, the body's registered or principal office in the United Kingdom, or, in any case, such address or place outside the United Kingdom as the President or a Regional Chairman may allow."

That gives some background as to the applicable rules.

[11]With that in mind, we turn to Mr Drake's Notice of Appeal. He says that the Employment Tribunal erred in law by not considering a request he had made for the case to be heard in a particular way. What he says in paragraph 6(1) of his Notice of Appeal is that he had asked that the matter should be heard:

"by letter/fax ex parte, in order that I might be fairly represented, have time and ability to examine the Applicant's statements, cross-examine evidence given to the panel during the hearing, opportunity to file a closing statement, respond to all allegations."

[12]But that is not possible under the Employment Tribunals' Rules. There may have been some misunderstanding perhaps generated by a different use of the term "ex-parte" in America and here. But, save for the written interrogation we have referred to under the Rules, in the ordinary way interrogation at the Employment Tribunal is by oral cross-examination. It is, of course, not unusual for opening or final submissions or both to be in writing, but Mr Drake submitted neither. Nor is there any provision for the Employment Tribunal to provide a transcript of evidence, which is a matter he refers to, either to a party who has or one who has not attended. That is not to say that had Mr Drake asked for it and made arrangements for it and made arrangements to pay for it that it would necessarily have been denied him, but that was not done. Basically, if he wished to challenge evidence given in writing or orally by Miss Powell's side other than by himself putting in argument or evidence in writing then he had to attend in person or by a representative to conduct the challenge. That was not done. There is, to some extent, an inevitable disadvantage, in any cases where, ultimately, tribunals have to decide upon the basis of evidence including that laid in front of them orally, to a party who neither attends nor is represented and the Rules, whatever they might be, cannot overcome totally that basic disadvantage.

[13]Mr Drake complains that Miss Powell was not cross-examined by the tribunal. But it is not a function of the tribunal to cross-examine as such. Of course, they are able to and do raise questions but the degree to which a tribunal of its own motion raises questions of a witness or a party is very much a matter for the decision of the tribunal itself.

[14]The appeal to the Employment Appeal Tribunal is only, of course, on points of law. No point of law arises in such connection unless, in effect, no Employment Tribunal properly directing itself could have failed to question the evidence in whatever way it is particularly suggested it should have done. We are not able to see any ground for any such conclusion.

[15]Mr Drake and, indeed, Mr Lakha, mount an argument in relation to documents. The rather strange position about documents was that Mr Drake had submitted, ahead of the hearing, a bundle of documents to the tribunal office, but on the instructions of a Chairman, they had been returned to him with a covering letter explaining that he should produce the bundle for consideration of the tribunal at the hearing. Unfortunately, Mr Drake did not resubmit the bundle in time for it to arrive at the hearing. But the problem seems then to have been solved because the position was that Mr Drake had not only sent documents originally to the tribunal (the documents that were returned to him) but had also sent the bundle Miss Powell or her advisers. The tribunal held that Miss Powell had supplied them with copies of those documents. What the tribunal said on that in paragraph 4 was this:

"… a further letter was faxed to the Tribunal office on 29 February, the day before the hearing, asking that the matter be dealt with on the basis of written submissions and the bundle of documents, of which he believed the Tribunal had retained a copy. [ The tribunal had not done so. ] In the event, the Tribunal had not done so, but the Applicant herself was able to supply a copy not only of her documents, but those of the Respondent as well."

So there is a finding by the tribunal that Mr Drake's documents had been supplied, albeit by Miss Powell. We are invited to speculate that that was not the case and that it might well be that Miss Powell, having an interest contrary to Mr Drake in relation to one document or another, had supplied to the tribunal less than the whole bundle which Mr Drake would have wished to have been laid before the tribunal. However, we have no reason whatsoever so to conclude. The tribunal had the documents in front of them and were able to conclude that Miss Powell had been able not only to supply her documents but "those of the Respondent as well".

[16]Mr Drake says that his arguments were completely ignored. But that, manifestly, is just not the case. In paragraph 6 the tribunal said:

"The Tribunal adjourned for a short while in order to have the opportunity of studying the Respondent's bundle of documents which, he stated, set out the nature of his case. We also read the Applicant's bundle of documents and her written opening statement."

There are specific references to the respondent's documents or the bundle of the respondent's documents in paragraphs 7, 8, 10 and 13 of the tribunal's conclusions.

[17]Mr Drake complains that the burden of proof was not on him. But the tribunal was, in fact, correct in taking it that the burden of proving the reason for the dismissal was indeed on Mr Drake. That is a correct conclusion - see Employment Rights Act 1996 , section 98(1). The tribunal said in their paragraph 11:

"In view of the dichotomy between the reasons professed in the statement and contents of the bundle, we are not satisfied that the Respondent has discharged the burden of proving the reason for the dismissal. On that basis alone we would find the dismissal unfair. Even if it were otherwise, the Respondent's failure to conduct any form of disciplinary hearing would in our judgement be a further fatal flaw which would inevitably lead to a finding of unfair dismissal."

[18]As to the remedy part, Mr Drake says:

"It is ludicrous for the Panel to also assume what the projected profits are of any business without the benefit of audited accounts, or books on the business." and that is a reference to that part of the tribunal's decision where they tried to assess what Miss Powell's earnings were, she, shortly after the dismissal, having commenced her own business as a self-employed mobile hairdresser. There is no rule whatsoever that only audited figures are to be admitted and, indeed, so to require, in relation to a small business shortly after its start-up, could prove crippling for the business concerned. The tribunal received evidence from Miss Powell; they say: "16. … Following her dismissal, she was out of work for approximately one week before commencing her own business as a self-employed mobile hairdresser on 26 August. We are satisfied, on the basis of figures that she has produced to us, that her earnings after expenses, in the period up to 29 February 2000, were £1,223.71. …"

The tribunal then goes on to work out what she would have earned had she continued in the employ of the respondent, Mr Drake.

[20]It was open to the tribunal to accept evidence of figures other than audited accounts and, indeed, other than as contained in books properly-so-called. That is a question very much of fact, one exclusively within the province of the Employment Tribunal and no error of law emerges there.

[21]Mr Drake says, in relation, presumably, to reasons for dismissal:

"Written reasons were given to the applicant therefore I cannot see why or how the panel can make an award that no written reasons were given – again they erred in law."

[22]Miss Powell gave evidence which was accepted by the tribunal that she had asked for but had been refused written reasons. In paragraph 8 the tribunal says:

"No disciplinary action had been taken against her – we have not had sight of any terms and conditions of employment that might have contained disciplinary procedure – and she was never advised of any allegations of poor performance or misconduct. When she asked for an explanation of the reasons, this was refused her. On 19 August, the Applicant wrote to Ms Greig asking for a full explanation for the reasons for her dismissal. We were shown a document (no.18 in the Applicant's bundle, no.20 in the Respondent's bundle) which purports to set out reasons for dismissal due to gross misconduct. This alleges that the Applicant was dismissed through disclosing confidential information to a potential buyer together with other reasons …"

But the tribunal accepted that such reasons as were given were not received by Miss Powell until 18th September 1999, which is outside the 14 day period provided for by section 92(2) of the 1996 Act, so the tribunal was enabled and entitled to hold, as they did in paragraph 13, as follows:

"The Applicant was entitled to a statement for the reasons for her dismissal pursuant to s92 of the Act. S92(2) provides that if a statement is requested, it is to be provided within 14 days. We are not satisfied that the statement in the bundle accurately reflects the true reasons for the dismissal and, in any event, it was not provided within 14 days. We are satisfied that the Respondent has breached s92 and so declare under s93. …"

No arguable error of law is there to be found.

[23]We have so far dealt with all the points that Mr Drake himself seeks to raise in his Notice of Appeal. We appreciate the difficulties that he was under being abroad and being unable to afford representation in this country. But he sent in, in time for the hearing, no written submissions, opening or final. He made no request for interrogation in writing pursuant to the Rules. He was not represented by anyone able to attend to challenge the oral evidence given and he has to be aware that we cannot deal with matters of fact unless the tribunal's conclusion on fact was either based no evidence whatsoever or otherwise was such that no Employment Tribunal properly instructing itself could have concluded as it did. We just cannot see signs of perversity to that extent.

[24]Mr Lakha has urged that the case could have been dealt with far more satisfactorily in ways other than the way in which it was dealt with, for example, by sequential exchange of witness statements and by reference to documents whereby Mr Drake would have been able to refute Miss Powell's evidence. But there was in fact no application for sequential exchange. There has been no identification, and this is not an unimportant point, of any document which Mr Drake could have produced which could be seen to refute Miss Powell's evidence or any conclusion of the Employment Tribunal. We have no reason to speculate that any such documents exist. Mr Drake has had the decision for many many months and he knows what his documents say. He points to no instance in which the Employment Tribunal's conclusion could surely not properly have been reached in the face of whatever document he would wish to draw attention to.

[25]Doubtless the case could have been dealt with in different ways and different arrangements could have been made. But Rule 9(1) leaves it to the tribunal to consider what is most appropriate in the way that we have cited from the Rule and unless they take into account matters that they should not have done or failed to take into account what they should have done or otherwise come to a conclusion such that no tribunal properly instructing could have so concluded, then no question of law , and one cannot fail to underline the word the law , truly arises. That better arrangements or other arrangements might have been possible is one thing, but to show error of law in what in fact was done is quite another. It has to be borne in mind that the Employment Tribunal, in considering what is procedurally appropriate, has to have in mind not only the position of someone such as Mr Drake but also the other party and in this case the other party, Miss Powell, was an applicant who had waited for a hearing, who was willing and able to conduct the hearing or have it conducted in the conventional way with the oral examination and cross-examination of witnesses and to whom, no doubt, delay would have been unwelcome. Mr Lakha (and I am using his own phrase) said that there is here a suspicion that not all is well. But that falls very, very far short of proof of error of law. To some extent, as we mentioned earlier, there is an almost inevitable disadvantage from which someone in Mr Drake's position suffers. He is abroad, he cannot afford representation and, perhaps, being a lay person, did not as fully attend to the rules as he might have done. But whether, as we have said, some better or more commodious arrangement, better suiting him, could have been arranged, is not the issue. We have to ask ourselves whether an arguable point of law arises out of the arrangements which were made, and we have to conclude that there was none. Accordingly, even at this preliminary stage, we dismiss the appeal.