MR R MACKENZIE v MRS SHARON MATHER [2002] UKEAT 1338_01_1305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1338_01_1305Case No Appeal No. EAT/1338/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R MACKENZIEAPPELLANTMRS SHARON MATHERRESPONDENT
Before
Mr Justice Wall Miss C Holroyd Mr D A C LambertDate 13 May 2002
[1]APPEARANCES For the Appellant MR R MACKENZIE (the Appellant in person) THE HONOURABLE MR JUSTICE WALL This is the Preliminary Hearing of an appeal by Mr Mackenzie against the decision of the Employment Tribunal held at Hull, in this case the Chairman sitting alone, on 31 May 2001. The Applicant before the Tribunal was Sharon Mather who describes herself in her Form IT1 as an Office Assistant. In Box 11 she makes this as her claim:
"I hope you can help me, as you can see, I started working for Richard Mackenzie in Feb 2000 and the last time I was paid for my work was in June 2000 he owes me over £300, that is the reason I left. I have rang and called to see Mr Mackenzie to no avail."
The response put in by Mr Mackenzie on 2 March was to deny that he had at any time employed or incurred any liability to pay wages to Mrs Mather. He goes on to say:
"For a period, the Applicant and Respondent were employed by the same company and the Respondent had managerial responsibility for the Applicant. However, any claim by the Applicant, of the type made in this case (which is unidentified in Section 1 of her form IT1, but which, presumably, is for unlawful deduction of wages) should properly be made against their former common employer. The Respondent anticipates that, if it were so pursued, it would be resisted by that company."
[2]The hearing before the Chairman went ahead in the absence of Mr Mackenzie who did not appear. He had put in, albeit considerably late, a written submission and documents attached to it. Despite the fact that those were late the Chairman read them and took them into account. Mr Mackenzie's reason for not attending was that he had a professional commitment to appear as a lay representative for a client at Lincoln County Court. He stated:
"As my case for the Tribunal is essentially very simple, it seemed unnecessary to apply for an adjournment of either proceedings."
In his written submission he stated that Mrs Mather was employed by a company called Gateway Professional Services (Nun-Royd) Ltd and he continued:
"With a view to establishing that fact, I asked the company to provide me with a copy of her Contract of Employment, but they had found that it had been removed (wrongly) but in circumstances about which they had no knowledge) from her personnel record file."
He said that the company had provided him with other documents, one of the pay slips issued to Mrs Mather, a copy of her P60 for the tax year ended 6 April 2000 and a copy of her P14 for the tax year ended 6 April 2001. He argued that all these documents clearly identified the company he had named as her employer. He had written to Mrs Mather asking her to produce a copy of her contract of her employment and he attached a copy of the letter dated 26 May, some five days before the Tribunal hearing.[3]The Chairman considered those documents. One was a Salary Advice and Service Record in respect of the Applicant dated 30 November 2000 showing various figures under a heading of "Payment Details" including "Net amount payable £77.46". The document, he said, did not make clear what sums had been paid and what sums remained to be paid. A P60 was also produced for the tax year ending 5 April 2000 showing the employer's name and address as Gateway Professional Services (Nun-Royd) Ltd and that the Applicant had earned £106.67 in that period. An end of year summary P14 was attached for the tax year to 5 April 2001 showing that the Applicant had earned £895.15 and had paid no tax and National Insurance in her employment in that period.[4]The Chairman then proceeded to hear oral testimony from Mrs Mather which he accepted. She told him that she had been paid in July for the month of June. She had received pay slips of the type produced by the Respondent. The tax code shown was incorrect. The pay slips did not show if any money had actually been paid. The sum of £95.96 was paid in July by the middle of the month. Employees, she said, were never paid on time. The pay slips showed the following for the amounts due to the Applicant. There is then a list of pay slips from 31 July to 30 November totalling £531.64. The Chairman continued:
"Since she had not been paid in respect of any of these wages, the Applicant left the Respondent and obtained a job doing bar work, as she needed money to live. The Respondent operated as a mortgage broker dealing with small business accounts. During the course of her employment her car had broken down and the Applicant begged the Respondent for money to pay for it and received a cash payment of £60 for which she gives credit against the £531.64 above leaving a balance due to £471.64."
[5]The Chairman then turned to the contract of employment. Mrs Mather's evidence was that she had begun asking for a contract in February 2000 and received a document dated 27 April 2000, although she did not understand it and thought it meant she was employed by Mr Mackenzie. She worked upstairs in the Respondent s' premises. She understood all her personnel files were kept downstairs. She had read the contract but never signed it. There is a reference in the document to Gateway Professional Services (Nun-Royd) Ltd, that is a company operated by the Respondent's father, but as far as she was concerned her employer was Mr Mackenzie. She did not remember getting a P60 from the Respondent nor a P14. She had received no P45 from the Respondent or from any other company at the termination of her employment. The Chairman described the contract as unsigned, dated 27 April 2000 and comprising of some fourteen pages. The opening paragraph reads:
"Dear Sharon This letter informs you of our proposals concerning a Contract of Employment. If you accept these proposals, the Contract which they define will regulate your employment by us from then onwards and will replace any previous Contract of Employment between you and us."
The following definitions were given:
"Us" (except when used as part of "both of us") or "we"
The Proprietor [undefined] "Both of us" You and We "Our" The Proprietor's "The Proprietor" The Proprietor, or Proprietors, at the relevant time, of the business including in appropriate circumstances, any person, or persons, who, having been properly authorised to do so, act on behalf of that Proprietor, or those Proprietors. "The Business" The business which, on 1st November 1995, was owned by Gateway Professional Services (Nun-Royd) Limited or if, at the relevant time, that business has been divided, the part of it with which your employment is entirely or mainly connected." The Chairman did not consider that any other definition assisted him in construing the contract or the identity of the employer. The letter to Mrs Mather concluded:
"If you are willing to accept these proposals, please sign and date the statement to that effect, which is printed at the end of each of the two copies of this letter which have been supplied to you. Please then return one copy to us. Yours sincerely, for and on behalf of the Proprietor."
The document is then unsigned.[6]The issue for decision, the Chairman decided, was that in considering the documentation and Mrs Mather's oral testimony, what was the correct identity of the employer in this case? The Respondent's case was that he was not the employer, as was apparent. The Chairman then made reference to the part of the defence which put forward the proposition that if Mrs Mather were to proceed to have the company as the employer the claim would be resisted. The Chairman then, in paragraph 10, which I think I should read in full, set out his reasoning:
"I therefore have to analyse the evidence and documents received and decide by whom the Applicant was employed. The Applicant's oral testimony was unchallenged in this case, and it is clear that she considered that she was employed by Richard Mackenzie. Although she received no P60, P45 or P14 containing the name of any other employer, she accepts that she received salary advices showing sums that should have been paid to her that were not paid. That is of course entirely consistent with a service company making payment to the Applicant on behalf of the employer. The Applicant received a Contract, or rather "proposals concerning a Contract" and that is a most curious document. It is unsigned and one looks in vain in it for any clear definition of the employer. The best information received is that the employer is the Proprietor at any time of the business which was owned on the 1 November 1995 by Gateway Professional Services (Nun-Royd) Ltd. Taking that document as a whole, it is a reasonable conclusion to reach that the document was intended to avoid making clear to the recipient the identity of the employer for whom she was working. I therefore have to balance on one side the Applicant's oral testimony that she was employed by the Respondent and worked at all times for him and regarded him as her employer, and the Respondent's contention in the Notice of Appearance, that the Applicant did not work for him but that he and the Applicant worked for some unnamed third party. It is my conclusion that, balancing those two contentions, the Applicant worked for the Respondent. She told me that she took her instructions from him and went to him to express her concerns about her non payment. In her application, she says she started working for the Respondent in February 2000 and at that time she had no knowledge of the company Gateway Professional Services (Nun-Royd) Ltd. I do not accept that by the provision of the document dated 27 April 2000, or by the wage slips produced, the Applicant was informed the identity of her employer had changed to that Limited company. Accordingly, I find that the Applicant was employed by the Respondent. Having made that finding, there is no dispute in relation to the amount of money owing to the Applicant. There are no details of the basis on which the Respondent contends that that sum is not due and owing and I therefore take it as accepted as £471.64."
At the end of the hearing the Applicant made reference to other employees who were claiming funds from Mr Mackenzie. The Chairman made it quite clear that they were not claims before the Tribunal and they were not the subject matter of the hearing.[7]Likewise, we make it clear that in the documentation we have before us, although it contains references to other activities of Mr Mackenzie, we take no cognisance of those whatsoever and deal with this matter purely as a matter of law arising from the decision of the Tribunal.[8]Mr Mackenzie was dissatisfied with the Chairman's reasoning and sought a review. That was carried out and full reasons given on 31 October. I propose to read two paragraphs of the review. Paragraph 3 reads as follows:
"The respondent put forward two reasons for the decision to be reviewed. The first is that it was made in his absence and the second is that the interest of justice requires a review because he considers it inconsistent with documentary evidence available to the Tribunal. The substance of the application is that the tribunal considered a document on the hearing which the respondent did not have an opportunity to consider because he did not attend the hearing. Put in that straightforward way I can see no basis on which this application for review stands any reasonable prospect of success since on that basis no decision made by a tribunal could ever withstand an application for a review from a party who chose, whether for tactical reasons or otherwise, not to be present on the hearing of which he had due notice. Accordingly, I refuse the application for a review."
Paragraph 7 states:
"Finally, references to the address of the applicant do not take matters further as far as a review is concerned. Clearly if the interests of justice require a review then that would be an appropriate course to follow. However, in this case, the decision was made on the basis of the evidence received from the applicant on the hearing and is not appropriately challenged in this way. The application is therefore refused."
[9]Mr Mackenzie now seeks to appeal the decision. He does so by repeating, effectively, the arguments which failed before the Chairman. Namely, that there was on the documents overwhelming evidence that Mrs Mather was employed by the company and that the document which Mrs Mather produced to the Tribunal as an operative contract was nothing of the kind. In this respect Mr Mackenzie seeks to argue in his Notice of Appeal the proposition that the contract and covering letter in question which were issued to her were on the headed notepaper of the company and were signed. The documents that she produced to the Tribunal, which were not originally in her possession because she was not issued with them, were, he believed, either stolen by Mrs Mather or otherwise wrongfully acquired.[10]That is a very serious allegation to make on an appeal with, in our view, no supporting evidence. Mr Mackenzie has produced two statements from witnesses, one of which purports to corroborate the view that the documentation was not correct (the statement of Ms Noble). Even if we were to admit that document, it is quite plain that Ms Noble comes nowhere near suggesting that the document produced by Mrs Mather to the Tribunal was stolen from the office. All she says is:
"It appears to have gone missing while I was absent from full time work with the Company during an extended period of illness."
Mr Mackenzie has also produced a document purporting to be from the Assistant Company Secretary indicating that the reason why the company has not reimbursed Mrs Mather is because if it did there would nonetheless be a judgment remaining outstanding against Mr Mackenzie personally and if Mrs Mather enforced that she would be paid twice. That argument, of course, does not even bear examination.[11]The simple fact of this matter is that Mr Mackenzie did not attend the Tribunal hearing on 31 May 2001. At that hearing Mrs Mather produced a document and gave oral evidence which was accepted by the Tribunal. The Tribunal was entitled to find, as it did, that the document she produced was a curious one. The Tribunal Chairman was also, in our view, entitled to find that the document intended to avoid making clear to the recipient the identity of the employer for whom she was working. Those are conclusions, in our view, which are unimpeachable. Mr Mackenzie of course now says that Mrs Mather was sent a contract of employment in which the company was identified as the employer and that what Mrs Mather produced at the Tribunal was an office copy, either stolen from the office, or now as he suggests, having seen it, a computer generated copy, produced presumably illicitly, either by Mrs Mather or someone working for her. We are entirely unimpressed by these suggestions which were not part of Mr Mackenzie's initial defence. The Chairman believed Mrs Mather as he was entitled to do. Production of two undated witness statements and an allegation of theft do not effect our view. If what Mr Mackenzie was stating had any truth to it he would have advanced his case fully at the Tribunal and that he manifestly failed to do.[12]In our judgment, on all the documentation, and considering the matter with the evidence of Mrs Mather, the Tribunal Chairman was entirely entitled to reach the conclusion he did. In these circumstances, since that is a factual conclusion and a deduction from it based on those facts, we see no arguable point of law at all in this case. The Chairman was fully entitled to reach the conclusion he did. In these circumstances we see no purpose in allowing the appeal to go forward to a Full Hearing and it will therefore be dismissed at this stage.