MR A HALL v MR J HAMZE LOUEI [2002] UKEAT 0317_01_3004

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0317_01_3004Case No Appeal No. EAT/0317/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A HALLAPPELLANTMR J HAMZE LOUEIRESPONDENT
Before
Mr Justice Wall Mr P M Smith Mr R N StrakerDate 30 April 2002
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT THE HONOURABLE MR JUSTICE WALL This is Mr Hall's appeal against a decision of the Employment Tribunal held at Plymouth on 13 November 2000 and 13 December 2000. The Tribunal had before it an application by Mr Hamze Louei. The decision of the Tribunal, the Chairman sitting alone, was that Mr Hall, who was the Respondent to those proceedings, should pay Mr Louei the net sum of £3,200.38 unlawfully deducted from his wages.[2]Before dealing with the facts of the case, the position here is that on two occasions the Tribunal has been in correspondence with Mr Hall in relation to the listing of this matter. On 18 March a letter was written by Mr Hall's mother, Mrs B L Hall, to the effect that Mr Hall was abroad and that letters written to him by the Tribunal would be dealt with when he returned on 25 March. More significantly, on 26 April, Mrs Hall once again wrote to the Tribunal in these terms:
"Further to my phone calls to you and to my son, I am writing as instructed to let you know that because he is out of the country, he requests that the hearing is deferred. To my knowledge he will not be back until the end of September, but I am sure he will write to you and confirm when he will be returning."
That letter was accompanied by a form stating that Mrs Hall, on behalf of her son, had received the Notice of Hearing for today, 30 April 2002, it states:
"My son requests a deferment of the hearing."
The phrase 'It is my intention to be present at the hearing' is not crossed out and the document was signed on 26 April 2002 by Mrs Hall. On 29 April Mrs Hall was advised that the application had been referred to the Registrar who directed that the matter remain in the list for hearing and commented that the Tribunal had no evidence that Mr Hall was abroad. The letter contains a note that Mrs Hall was telephoned and told that the matter would remain in the list for today. There were also several communications with the Respondent to the appeal, Mr Louei, including correspondence by fax, warning him that the matter would be in the list for today. Neither party appears.[3]We have, of course, considered carefully what we should do in these circumstances. We have come to the conclusion, having read the papers, that we should deal with the matter as it stands. That is what we propose to do.[4]We have the very substantial advantage in this case of a judgment given by the Employment Appeal Tribunal at the Preliminary Hearing of this appeal, the constitution being presided over by Mr Recorder Underhill QC. We can, I think, properly take the facts from Mr Underhill's judgment.[5]The Appellant, Mr Hall, is a businessman who owns or controls a company called Polygon Corporation Ltd which in turn owns the Astor Hotel in Plymouth. Between February and June of 2000 Mr Louei, the Respondent to this appeal, worked as manager (whether or not he had that precise title) of the Astor Hotel. The parties entered into no proper formal definition of the relationship, but when it came to an end Mr Louei claimed that he was owed several thousand pounds for the period he had worked and brought proceedings before the Tribunal. The claim was heard by the Chairman and, as I have already stated, the conclusion was that Mr Hall had unlawfully deducted from Mr Louei's money the sum of £3,200 odd.[6]As the reasons of the Tribunal Chairman make clear, and as Mr Recorder Underhill confirmed, the hearing was not an easy one. There was a marked absence of documentation and the personal relationship between the Appellant and the Respondent was such that, according to the Chairman, their evidence from time to time descended into mutual insult. We have every sympathy for the Chairman in hearing such a difficult case. The Chairman was required to determine a number of issues. Firstly, whether Mr Louei was in the period in question a worker within the meaning of the 1996 Act. The Chairman held he was. Secondly, and this is the only point currently live, whether the employment was with the Appellant personally or with the company, Polygon Corporation Ltd. The Chairman found, and held, that it was with the Appellant personally. Thirdly, there was an issue as to the date that the employment began. Fourthly, the agreed rate of pay. Fifthly, whether a payment of £2,000 which was made in April or May 2000 was in part discharge of the amount payable or was referable to some consultancy work done by Mr Louei in the period prior to 7 February. On this the Chairman preferred Mr Louei's evidence that it was the latter. Accordingly, the sum of £2,000 did not fall to be set off from the amount otherwise due. That is a significant finding of fact with which this Tribunal, on the evidence before it, could not possible disagree.[8]Fortunately, although, perhaps, somewhat surprisingly, since Mr Hall by common consent is a wealthy man, he was represented at the Preliminary Hearing by Mr Laddie under the ELAAS Scheme. Mr Laddie was able to reduce the material to be placed before the Employment Appeal Tribunal to manageable proportions. The first question was whether or not the employment had been with the Appellant or with the company. Mr Laddie made a number of submissions in relation to that. They included questions as to the cheque for £2,000 paid in April or May 2000. Mr Recorder Underhill refers to a sentence in paragraph 6 of the Extended Reasons in which the Chairman said:
"No documentation was produced to show whether that was a personal or a company cheque and I am not able to make any finding about that."
Mr Recorder Underhill goes on: It is indeed correct that the Appellant did not produce the original cheque or any bank statement relating to it, and that may be a matter of some surprise. Nevertheless, he has gone on oath, in an affidavit filed in support of this appeal, to the effect that he gave oral evidence to the Tribunal, which was not challenged, that the cheque was a company cheque. We do not feel able on this hearing to reject evidence of that character. If it is correct, then the Chairman's statement which we have quoted is arguably at least inadequate and perhaps, by implication, wrong. How that error, if it was one, affects the validity of his overall reasoning may by debatable, but it cannot be said to have been plainly immaterial." There is then a discussion in the judgment as to the nature of the relationship and whether it was a personal relationship as described by the Chairman and debate over what that phrase meant. Mr Recorder Underhill concluded that:
"Although neither of these points is by itself conclusive and there may be a number of possible answers to them, we do not believe that we are in a position in the light of them to dispose of this issue on a summary basis. We will accordingly allow the appeal to proceed as regards this issue."
[9]Three ancillary points arose which were first, whether it was necessary that the Chairman's notes of evidence on the point in relation to the cheque should be obtained in order to established whether it was indeed the case that the Appellant, as he claimed, gave evidence that the cheque was a company cheque. Second, that the Notice of Appeal which was in a 'home-made' state should be rectified by the Appellant and preferably by Mr Laddie if he was able to assist. Third, there was another reference to the cheque for £2,000 and a print-out which had been produced and which was not referred to in the Extended Reasons. The Employment Appeal Tribunal made a Direction that the Chairman's comments be sought on whether the second part of the print-out was relied on in evidence and for the transcript of any notes relating to it.[10]The Appellant had also made an allegation of bias against the Chairman of the Tribunal. The Employment Appeal Tribunal dealt robustly and in our view, wholly correctly, with that, stating that even if the allegations were to be established they came nowhere near or within measurable distance of establishing even a prima facie case of bias. The appeal was not permitted to proceed on that ground.[11]For reasons which we do not know the Appellant sought the permission of the Court of Appeal to appeal from the judgment on the Preliminary Hearing given by Mr Recorder Underhill. On 5 December 2001 Lord Justice Pill refused that permission.[12]The Chairman's notes have been obtained. They demonstrate that when he gave evidence on 13 December 2000 the Appellant did indeed give evidence that the cheque for £2,000 had been written on the company's account. The phrase used was "The cheque was Polygon". The date of the cheque was agreed as being 23 May 2000 but the point as to the source of the cheque, that is the company as opposed to Mr Hall, was not challenged by Mr Louei. In our judgment that point does not materially assist in the circumstances of the case given that the Tribunal found in Mr Louei's favour on the payment of £2,000 in relation to management consultant services unrelated to his employment at the hotel.[13]In our judgment, given the findings of fact which have been made, the Notice of Appeal as amended (by the looks of things with the assistance of counsel) is limited to one ground. Namely, that the Employment Tribunal erred in law in that the Chairman should not have allowed the proceedings to proceed against Mr Hall as an individual. Proceedings should have been against the name of the corporate owner, namely, the Polygon Corporation Ltd.[14]In our judgment that argument cannot succeed on the material available to the Chairman and to us. There was ample opportunity below for Mr Hall to establish that the contractual relationship and payments made to Mr Louei were made by the company and not himself, and he manifestly failed to do so. The Chairman made a substantial number of findings of fact, all of which he was entitled to make and none of which can be interfered with by this Tribunal. Even if the cheque for £2,000 was drawn on the company, that does not, in our judgment, affect the finding made by the Tribunal as to the nature of the relationship between Mr Hall and Mr Louei. The Chairman, in our view, was entitled, on the evidence, to reach the conclusions that he did. Mr Hall has had ample opportunity to demonstrate both before the Tribunal and subsequently that this was wrong. He has failed to do so.[15]In our judgment, in these circumstances the appeal should be dismissed. I add, simply, that we are not impressed by the reasons for Mr Hall's non attendance today. This appeal has been in the warned list. Mr Hall is a man of substance, who, if he could not be personally present today, could have instructed a representative to attend on his behalf. He has failed to so do. It is high time that this litigation came to an end. The Tribunal has found that Mr Hall owes Mr Louei a sum of money and we see no purpose in allowing litigation to linger any further. In these circumstances the appeal will be dismissed.