MORGAN HALL SOLICITORS v (1) MR BUTLER (2) TREVOR LEACH & CO SOLICITORS [2001] UKEAT 836_00_1901

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 836_00_1901Case No Appeal No. EAT/836/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MORGAN HALL SOLICITORSAPPELLANT(1) MR BUTLER (2) TREVOR LEACH & CO SOLICITORSRESPONDENT
Before
His Honour Judge P CollinsDate 19 January 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS JUDGE P COLLINS CBE : This is an appeal against the decision of an Employment Tribunal sitting at Stratford whose extended reasons were promulgated on 8 June 2000. They decided that the respondent had been unfairly dismissed by the appellant and ordered compensation of £6,437.76.[2]The way in which the case arose was slightly unusual. The respondent was a cashier and bookkeeper employed by a firm of solicitors called Trevor Leach & Co who were respondents to the application. Her employment started in February 1989.[3]In the summer of 1999 the Law Society intervened into Mr Leach's practice and the appellants, whose principal appears to be Mr Bhurawala, entered into an agreement on 2 August 1999, of which we have a copy, to take over the practice.[4]Essentially, what the tribunal held was that contrary to the submissions that were made by Mr Bhurawala, who was the only person to attend the hearing, the contract of employment between the appellant and Trevor Leach was not frustrated but that she had been dismissed on 3 August by virtue of it being repudiated, when Mr Leach entered into the contract to sell to the appellants. They held that that the effect of the Transfer of Undertakings (Protection of Employment) Regulations 1981 was that the burden of that dismissal fell on the appellants.[5]The Notice of Appeal was lodged on 5 July and the grounds are said to be that there were extenuating circumstances (whatever that means in the context of an Employment Tribunal case) and it is said that it would be inequitable for the decision to stand, bearing in mind that Mr Leach did not have an opportunity to be represented or be heard as a witness. He said that there was additional evidence alleging that the respondent had resigned rather than being dismissed and that the chairman was wrong to rule on the frustration argument.[6]It ought to be borne in mind that in Mr Leach's Notice of Appearance, which he entered on 7 October 1999, there is no suggestion whatsoever that the respondent had resigned. It is simply an allegation of frustration. The allegation that she had resigned appeared subsequently in a letter which he wrote to the tribunal on 24 May, the day after the merits hearing had been disposed of and in that letter, for the first time so far as we know, he alleged that the respondent had resigned and that there was a letter of resignation. I shall come back to that letter of resignation in a moment.[7]The appellants have not appeared today to pursue their appeal. On Wednesday an extraordinary fax was received from Mr Bhurawala's secretary and (without reading it out in detail) it exhibited an indecipherable medical certificate saying that Mr Bhurawala was not able to work; it is impossible to tell what his condition is. It says that he "has not been in the office since last Friday" and that nothing whatsoever had been done to prepare for this hearing and the blame for that is put on the unfortunate Mr Leach, who promised to put forward evidence which he had not done. On the same day the tribunal had faxed to it, again from the fax of the appellants, a letter from Mr Leach dated that day, saying that he apologised and enclosed a Witness Statement from a Ms Carrington but says:
"Because she is at work Ms Carrington has not been able to approve the statement yet nor to sign it and so you must not regard it as evidence for the purpose of the hearing."
[8]In those circumstances it is not easy to see why any trouble was taken to fax it to the tribunal because if it was not evidence there is no point in us looking at it. But the main point about it is that the unsigned draft statement from Ms Carrington gives no real independent evidence. The essence of it is what she was told by Mr Leach. In paragraph 5 she says:
"Mr Leach told me that she had resigned and showed me a letter from Mrs Butler to him which I recognised instantly as written in her handwriting."
[9]The extraordinary feature is that, although it is really Mr Leach's evidence and not Ms Carrington's, there is no statement from Mr Leach and the letter in question is not put forward. If there was to be any serious case advanced that the respondent had resigned and she had done so in a letter, it is remarkable that the letter has not been produced to this tribunal but that a statement of somebody who was not directly involved and who has not signed the statement should be produced in its place. No explanation has been forthcoming for this failure. It is a truly remarkable way to present a case in the Employment Appeal Tribunal, bearing in mind the appellant is a solicitor and that he must have had notice for at least three months of the hearing date.[10]It does appear to be correct that the hearing on 23 May took an unusual course. It had been set down for a two-day hearing but the tribunal disposed of it on the first day. That does not really explain why Mr Leach was not there on the first day, he was a respondent and not just a witness, and it would be perfectly reasonable for the tribunal to assume that if he did not turn up on the first day he was not taking part. If he had material evidence to give in the form of a letter then it is remarkable that he had not given a copy of it to Mr Bhurawala, so Mr Bhurawala could have put it to the respondent in the course of her cross-examination. But examination of the reasons of the tribunal suggests that the possibility of the respondent having resigned was not something which was raised at all and was never raised until the following day when Mr Leach sent his letter to the tribunal.[11]We have received a skeleton argument this morning from Mr Bhurawala who explains that he is unwell, although why he could not have instructed somebody to conduct this appeal on his behalf is nowhere indicated. He deals with the question of frustration in paragraph 1 of the skeleton argument but it does seem to us that the question of frustration is fully addressed in the tribunal's reasons. Paragraphs 2 and 3 were not material. Paragraph 4 is simply not developed. Paragraph 5 deals with the question of resignation which I have already dealt with fully in the circumstances.[12]This seems to us to be a case where the respondents had not prepared their case properly before the tribunal and, if anything, they prepared it even worse for today. If there is any criticism to be made it is the way in which the appellants have handled this matter; it is very difficult to see that there can be any possible criticism in law of the way in which the tribunal dealt with it. They gave it a great deal of consideration, dealt with all the matters which were before them in a way which in our judgment is unimpeachable and we will dismiss this appeal.