MR N R CORKE v MISS A K WILSON [2001] UKEAT 914_00_2601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 914_00_2601Case No Appeal No. EAT/914/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N R CORKEAPPELLANTMISS A K WILSONRESPONDENT
Before
Mr Recorder UnderhillDate 26 January 2001
[1]APPEARANCES For the Appellant MR A THOMAS Ross-on-Wye Services Ltd Unit 5, Croft Court Crofts Lane Ross on Wye Hertfordshire HR9 7AB MR RECORDER UNDERHILL QC This appeal arises out of a claim by Miss Wilson, the Respondent to this appeal, against, firstly, her ex-employers, a firm of solicitors called Newfield & Co of which Mr Newfield was the sole proprietor, and, secondly, one of its employees, Mr Corke. Newfield & Co was the First Respondent to the Originating Application and Mr Corke the Second. Newfield & Co were closed down by the Law Society, and it appears that Mr Newfield is insolvent and was declared bankrupt before the hearing came on.[2]The claim against the firm was for unfair dismissal, wrongful dismissal, arrears and sex discrimination. The claim against Mr Corke was for sex discrimination only. The claim came on for hearing by the Employment Tribunal in Ashford on 3 May 2000. The extended reasons were sent to the parties on 12 June 2000. For reasons that it is unnecessary to go into, neither Respondent attended. The Applicant succeeded in all her claims.[3]The award against Mr Corke by way of compensation for sex discrimination was £9,160. This included an element of £3000 representing 6 months loss of earnings. Mr Corke applied to the Employment Tribunal for a review, but his application was rejected on 8 August 2000.[4]Mr Corke appeals against the Order as against himself. The matter comes before us as a preliminary hearing. His original Grounds of Appeal dated 20 July 2000 are twofold, although as Mr Thomas, who appears for him today, acknowledges they really raise the same point:
"1. At paragraph 36 of the decision the Tribunal awarded the Applicant £3000 for loss of earnings. The Tribunal erred in law because they failed to take into account the fact that the employer Newfield & Co, a firm of solicitors, was intervened and closed by the Law Society on or around the 10 th of November [1999]. 2. In the extended reasons the Tribunal found that the Applicant resigned with effect from 24 th of June 1999. Given the novus actus interveniens of closure of the firm of Newfield & Co this must limit loss of earnings."
By a letter of 10 November 2000 from Mr Thomas on his behalf, Mr Corke asked for an additional ground to be added, namely that:
"3 The Employment Tribunal acted unfairly and unreasonably in staying all cases against Edward Newfield at Ashford except the case against Newfield and Corke."
We deal with those grounds in turn.[5]So far as the first and second grounds are concerned, these raise purely factual issues. They could have been raised at the hearing on 3 May 2000. To the extent that they were not, as to which there is no evidence, that is no doubt because Mr Corke did not attend. There is no challenge to the decision of the Tribunal to proceed with the hearing, and there can be no error of law in the Tribunal proceeding on the basis of the evidence which they had.[6]As to the third ground of appeal, we do not see how Mr Corke can complain of a failure to stay the action against the firm. We do not see how it can be regarded as unjust to him that the case against him, which the Tribunal found to be well founded, should have been allowed to proceed, even if that meant, as may be the case, that it was formally necessary for it to continue, also against the First Respondent.[7]We accordingly dismiss this appeal.