MRS S T ASPRILLA v C S GROUP LTD [2002] UKEAT 1274_01_0411

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1274_01_0411

Case No Appeal No. EAT/1274/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS S T ASPRILLAAPPELLANT

C S GROUP LTDRESPONDENT

Before

Mr Justice Wall Mrs C Baelz Ms S R Corby

Date 4 November 2002

[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the Respondents MR L MOODY (Representative) MR JUSTICE WALL This is highly unusual case. On 12 December 2000 a form IT1 was presented to the Employment Tribunal at Bury St. Edmunds by a person describing himself as Santo Thomas Valencia Asprilla born on 18 September 1967. Mr Asprilla claimed against the Craft Cleaning Company (the Respondent) by whom he had been employed (he said) as a cleaner between July 1998 and 13 September 2000 that he was unfairly dismissed and that the Respondents was in breach of contract. His attached statement gave a number of detailed particulars over several typed pages as to how he put his case. He claimed compensation, money owed as a result of breach of contract and holiday and over time pay.

[2]The Respondents filed an IT3 4 January 2001 in which it said that it had no record of a Mr S T Asprilla being employed by the Group. So the issue immediately arose as to whether or not Mr Asprilla had ever been so employed.

[3]On 2 March 2001 a statement was presented from Mr John Blachford of the Respondent, which made it clear that the man calling himself Asprilla was known to Mr. Blachford as Fernando Almeida; and on 12 July 2001 the Respondent, in response to an order of the Tribunal, put in an amended Notice of Appearance making it clear that the company had no record of ever having employed Mr Asprilla but that Mr Almeida had been recognised from previous hearings as being a cleaner who, as Almeida, worked for it on a cleaning contract at 100 New Bridge Street as the day operative.

[4]The statement goes on to say that all of the Craft Group representatives had supplied written statements stating the cleaner in question was known to them as Mr Fernando Almeida and that the Respondent was in possession of his original application form showing the Applicant's name as Jose Fernando Almeida Mozeira. A copy of his N.I number card and a copy of his passport including a photograph were produced showing his name as Jose Fernando Almeida Moreira Menriques were available. Those documents were shown to us this morning and indeed there is an identity card issued by the Portuguese Republic with a photograph providing the particulars which the Respondents received together with a N.I number card JA630822C.

[5]The amended Notice of Appearance goes on to say that throughout his employment with the Group Mr Almeida's wages were paid in the name of Almeida, and that tax and national insurance were deducted and paid to the Inland Revenue in that name and N I account number. However, his salary was paid into an account of a Mr Asprilla. The Respondent pointed out that it was not uncommon among cleaning staff to have wages paid into an account in the name of a wife or husband; or into a family account; but that did not mean, of course, that the Group employed the owner of the bank account. In these circumstances, the Defendant sought an order dismissing the claim. It also pleaded in the alternative as to the merits.

[6]The Notice of Appearance or amended Notice of Appearance was filed pursuant to an order of the Tribunal on 27 June 2001 with Extended Reasons promulgated on 2 July 2001. The Tribunal ordered that the proceedings were to be postponed and a hearing was fixed for 5 September 2001 with directions being given. It is worthwhile noticing that on 27 June 2001 before the Tribunal the Applicant (still of course described as Mr Asprilla) was represented by a solicitor, a Mr Olofeko of a firm known as Liberty.

[7]In the extended reasons promulgated on 2 July 2001, (which are important for an understanding of subsequent events) the Tribunal set out the essential facts. It then directed the Respondents to file a properly pleaded Notice of Appearance by 13 July, which of course it did. The parties were ordered to provide inspection of documents at the offices of the Respondent on 18 July 2001. Copies were to be taken by the Applicant on payment of the Respondent's reasonable charges. The documents in question were the Applicant's passport and Department of Social Security document showing his N.I number. Secondly, the Respondents were to disclose the payslips to the Applicant of August 1998 and the form completed when the Applicant joined, or the form authorising payment to the account of Mr Asprilla. The Applicant was ordered to produce his witness statement and the witness statement of any witness on his behalf to the Respondent and to the Tribunal on or before Friday 27 July.

[8]The Respondent was ordered to send to the Applicant's representative any witness statements on which it proposed to rely including any amended witness statements or witness statements in reply on or before Friday 10 August. The Tribunal noted that it expected the statements of both sides to represent the witnesses' evidence in chief subject to the discretion of the Tribunal to allow further questions in chief. The hearing was fixed by agreement for Wednesday 5 September at 10 am at Woburn Place.

[9]The Tribunal noted that there would be no postponement except in exceptional and unforeseen circumstances. The parties were warned that they might be asked to agree a time table for evidence in chief, cross examination of the other side's witnesses and final submissions to the Tribunal hearing of the case. The Respondent say that the Applicant failed to obey that order and did not produce the documents which he had been ordered to produce particularly his passport and his security documents giving his N.I number.

[10]Shortly before the hearing on 5 September the Respondent sought an adjournment. This was in part provoked by the fact that whereas the Applicant had not obeyed any of the orders in time it appeared at the last minute that he was going to put in an appearance and contest the matter. The Respondents naturally wished not to be taken by surprise. In the event, and in our view quite correctly, the Tribunal refused to adjourn the matter. The Respondent was informed of that refusal by telephone as was the Applicant or the Applicant's solicitors. There were (according to the extended response subsequently sought from the Chairman of the Tribunal) several attempts to contact Liberty and to leave messages that the Tribunal was going ahead. In any event from Liberty's point of view the date had been long fixed by agreement and therefore was due to go ahead. The mere fact that the Respondent may have attempted to put it off was in our view neither here nor there. In any event there was no appearance from Liberty or the Applicant when the matter came before the Tribunal on 5 September.

[11]The Tribunal helpfully gave extended reasons for the decision it they took dismissing the Applicant's complaints of unfair dismissal, breach of contract and unlawful deductions from wages. It described the history of the matter as "turbulent". It pointed out that the Applicant had failed to attend - as had his solicitor. The reasons record that attempts by the clerk of the Tribunal to make telephone contact had been unsuccessful and that no explanation for the lack of appearance had been forthcoming. The Tribunal noted that this was not the first occasion on which a problem of that kind had arisen, and the reasons note that as recently as August the Applicant narrowly avoided having his Originating Application struck out for failure to comply with an order of the Tribunal.

[12]The Tribunal accordingly proceeded to hear the evidence of Mr Blachford and the author of another statement, Mr Kyerematol. The reasons continue at paragraph 6 to record that the Tribunal on 27 June 2001 had identified a crucial initial issue in relation to the identity of the Applicant. The problem was that the Respondent had told the Tribunal in June 2001 (as indicated in previous correspondence) that it had no record of having employed a Mr S T Asprilla. However, it did have records relating to a Mr J F Almeida. There appeared to be some link between Mr Asprilla and Mr Almeida. It was because that issue was crucial to identifying the Applicant in the case that Mr Carstairs at the hearing of 27 June 2001, had given Directions which included a direction for the Applicant to furnish his passport and documents from the Department of Social Security showing his national insurance number.

[13]Slightly later the reasons continue:

"7. In the communication from the Applicant's solicitors the Tribunal of 20 August 2001, seeking him to show cause as to why the Originating Application should not to struck out for failure to comply with an Order of the Tribunal, it was stated that: "… we came to the Tribunal with two witness statements and Mr Asprilla's bank statement on 27 June and these were given to the Respondent. All we needed to add to them was Mr Asprilla's passport and Department of Social Security Documents showing Mr Asprilla's National Insurance number (NINO). We have provided copy of the NINO and informed the Respondent that Mr Asprilla's passport is at the Home Office and have given them the Home Office/Port reference number that is TN2/56914. We have equally notified the Respondent that Mr Asprilla will adopt the statement of case as his witness statement." "8. During the course of their evidence before the Tribunal the witnesses for the Respondent have told us that they have employed under a contract of employment a Mr J F Almeida. That Mr J F Almeida has a national insurance number: JA 63 08 22 C. Mr Almeida was paid under an arrangement whereby his wages were paid through a bank into an account in the name of "

S V Asprilla". This was a practice throughout the duration of the contract of employment between Mr Almeida and the Respondent."

[14]The Respondent's witnesses went on to tell the Tribunal that there was still money due to Mr Almeida, but maintained the position in relation to who they were employing. The Tribunal accepted that evidence. As importantly, in our judgment, it also accepted the evidence of the Respondent's witnesses to the effect that (by reference to the statements contained in the letter of 20 August which the Chairman read from the Applicant's solicitors to the Tribunal) it had not been given the bank statement relating to Mr Asprilla; it had not been given a national insurance number for Mr Asprilla; and it had not heard before that day of the passport reference TN2/56914.

[15]The Tribunal came to the view that it was abundantly clear to the Applicant and his advisors, in particular from the Directions given on 27 June 2001, that the key issue in the case before the merits could be considered was the identity of the Applicant and whether a link (and, if so, what link) could be established between the Applicant "Mr S T Asprilla" and Mr J F Almeida, who was the employee on the records of the Respondent. However, the Tribunal concluded that as the Applicant had failed to appear, and as he had failed to make the link, it was unable to say that the Mr Asprilla who was the nominal Applicant was the same person as Mr J F Almeida who had been employed by the Respondent. In other words the Claimant had been quite unable to show that he was an employee for the purposes of the Employment Rights Act 1996. He had to establish the existence of a contract of employment and that he had plainly failed to do so. And for similar reasons his other claims plainly failed.

[16]The Tribunal accordingly made the order as I indicated earlier dismissing the various claims. From that order the Applicant appeals to this Tribunal. At the Preliminary Hearing before a constitution presided over by Mr Recorder Langstaff, the matter was allowed to proceed on it must be said somewhat technical ground. Be that as it may, the Notice of Appeal before us complains about the hearing on 5 September saying that the Appellant received a telephone call from the Tribunal on the 3 rd that the hearing on the 4 th had been adjourned as requested by the Respondent. Prior to that the Applicant had been willing to attend and able to do so but the Respondent applied for an adjournment.

[17]On the evidence available to us that paragraph simply cannot be correct. True it was that the Respondent had made an application for an adjournment but at no point had the hearing been adjourned and therefore the Appellant simply could not have been told that it had been adjourned. The Notice of Appeal goes on to say:

"In practice if a party fails to attend the Tribunal a clerk will endeavour to contact him by telephone and enquires as to why he did not appear. In this case the Tribunal only says, "telephone contact have been unsuccessful" without stating why it was unsuccessful. Also the Appellant's Solicitors then received a letter on the 5 th September, the day of the hearing that the hearing was actually going ahead."

[18]That letter does indeed exist but it should have come as no surprise to the Applicant's advisors, even if received on the morning of the hearing, because from their point of view there was no basis upon which the Tribunal hearing on the 5 th had been adjourned in any event. The notice goes on to say that the Applicant believes the decision of the Tribunal to go ahead with the hearing in the absence of the Appellant and in the circumstances was erroneous was contrary to

Article 6 of the European Convention on Human Rights

, and that justice cannot be seen to have been done. The Appellant believed that he had a valid reason for not attending the hearing. He wished to be at the Tribunal prosecuting his case and the dismissal of the Appellant's case for unfair dismissal, breach of contract and unlawful deduction from wages was consequently unlawful.

[19]In view of those implied if not expressed criticisms of the Tribunal the Chairman's comments on them was sought. He pointed out that the case had been fixed for 5 September for some considerable time. The file showed that that application by the Respondents for postponement of the hearing listed for 5 September was refused by the Chairman on 4 September in circumstances where there had been no comment received from the Appellant or his representatives since there had been "no response after several attempts". The file also shows that the clerk to the Tribunal telephoned the representatives of the Appellant at 12.28 on 30 August and left a message requesting a representative of that firm to return the call. There was no record of a returned call. The file further shows that Mr Axtell the clerk had phoned again at 11.00 o'clock on 31 August. Again he left a message for Mr Olufeko of that firm to call. There was no record of a returned call. The file further shows that Mr Axtell tried again at 16.45 on 31 August 2001 and again left a message for Mr Olufeko of which there was no record of a returned call.

[20]Furthermore there was no record on the file of any telephone call to the Appellant from the Tribunal on 3 September as stated in the amended Ground of Appeal. Professor Neal concludes by saying:

"The hearing of this case was scheduled to commence at 10.00 on 5 September 2001. The Appellant failed to appear, as recorded in the Extended Reasons at Paragraph 3. Unsuccessful attempts by the Clerk of the Tribunal to make telephone contact with the Appellant or his representative are also recorded at Paragraph 3 of the Extended Reasons. The Chairman's notes (signed and dated by myself) show that the start of the case was delayed until 10.15, at which stage, the Appellant still not having made an appearance, it was then heard and determined as appears from the Extended Reasons. The unanimous decision of the Tribunal was dictated onto tape in the presence of the Respondent's representative and witnesses at 10.55, and the Extended Reasons were promulgated and sent to the Parties on 13 September 2001."

[21]Today, in answer to the appeal the Respondents appears and puts its case, if we may say so, succinctly and neatly in two paragraphs.(1) The Appellant had every opportunity to furnish both the Court and the Respondents with evidence as to his true identity following the course of previous Directions of 27 July 2001. He has not done so. The Respondents has given evidence to the substantiate his case in the form of copies of passport, N.I number card furnished by the Appellant that clearly shows his true identity as Mr Almeida. The Appellant claims that he had been informed that the previous case had been adjourned, which we believe is an error of fact.

(2) We have documentary proof of the identity of the Appellant as given at the hearing of his employment as Mr Almeida. All tax and N.I documents deductions had been made in this name. It is therefore unnecessary to bring this case in another name for whatever reason.

[22]We have to decide whether the Tribunal erred in law in going ahead with the hearing on 5 September. Clearly every Tribunal has a duty to act fairly and in accordance with

Article 6 of the European Convention on Human Rights

and of course justice must be seen to be done but in our view it is very clear from the time table which we have set out in some detail that the hearing on 5 September was fixed on 27 June by agreement and was not to be vacated without a fairly good reason and that the Appellant has plainly been in clear breach of the orders of the Court to produce documentation designed to establish his identity that he has particularly failed to do.

[23]We agree with the Respondent that every opportunity has been afforded to him to do so. He does not appear today. No reason has been given for his failure to attend although the Employment Appeal Tribunal has received a telephone call from Liberty stating that they are not going to attend but that they have no objection to the case proceeding in their absence. Quite what is happening in this case is not for us to investigate although we are sufficiently concerned about it appropriate that this judgment should be transcribed and sent to the Home Office under the reference provided to the Respondent.

[24]We are however entirely clear that the Applicant has been given every opportunity to establish his identity that he has manifestly failed to do. The Tribunal on 5 September was entirely correct to proceed as it did in his absence and no injustice of any kind has been done to the Applicant. In these circumstances inevitably this appeal must be dismissed.