MR NORIAN T/A LA STRADA RESTAURANT v MR G ANGELLOTTI [2002] UKEAT 766_02_1712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 766_02_1712Case No Appeal No. PA/766/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR NORIAN T/A LA STRADA RESTAURANTAPPELLANTMR G ANGELLOTTIRESPONDENT
Before
Mr Justice BurtonDate 17 December 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 BURTON (PRESIDENT) This is an application under Rule 3(10) of the Employment Appeal Tribunal Rules which, in effect, is an appeal against the Registrar's decision, under Rule 3, that the Employment Appeal Tribunal has no jurisdiction to hear the appeal. The Rule 3 jurisdiction arises, in effect, when no point of law is raised by the appeal. That can be the case in a number of different circumstances. The circumstances here, however, can be said to be straightforward, namely that the point is one simply of fact, i.e. that the Employment Tribunal erred when it made the decision it did, in favour of the Respondent to the appeal.[2]The circumstances can be briefly set out. The Respondent to the appeal, who was the Applicant below, worked in La Strada Restaurant. He brought a claim for unfair dismissal and named as his employer, in paragraph 5 of the IT1, as follows:
"Name - Mr Norian Address - La Strada Restaurant 20 Exeter Road Bournemouth"
He was thus alleging that Mr Norian was his employer. It appears that the proceedings were served by sending them to the La Strada Restaurant and they were dealt with, to some extent, it appears, because a Mr Shillaw appears to have been involved in at least receiving the Employment Tribunal proceedings, and it would appear that, through Mr Shillaw, the Appellant knew of their existence. What he did not know of, however it appears, is the hearing itself, because, he told the Employment Tribunal that he did not receive the Notice of Hearing.[3]In those circumstances, the hearing went ahead without his presence, but also, it appears, without any representative of La Strada Restaurant, whether Mr Shillaw or otherwise, and the Tribunal, in the absence of any Respondent, and, indeed, in the absence of any Notice of Appearance, concluded by implication that the Applicant was employed by the person he said he was employed by, namely Mr Norian, and that he had been unfairly dismissed because his case that he put forward, as to the circumstances of his dismissal, was thus unchallenged.[4]The appeal that was put in by Mr Norian on 10 June 2002, reads as follows:
"The grounds upon which this Appeal is brought are that the Employment Tribunal erred in law in that: 1. The applicant claimed he was employed by the Respondent, that claim is untrue. 2. The Respondent was not at any time the employer of the Appliant. 3. The Applicant was employed by La Strada Ltd (evidence supplied). 4. Any Order made against the Applicant was wrongly made in law."
The documentation which has been produced shows a P60 which has the employer's name and address as "La Strada", with the words "Ltd" added, seemingly in handwriting, after the name "La Strada" and there is also a payslip in the standard form for the Inland Revenue, which does have in correct form, from the Appellant's point, "La Strada Ltd" typed on.[5]We also have a letter stamped as received by the Employment Appeal Tribunal on 11 June, but otherwise undated, which accompanied the Notice of Appeal, signed by Mr Shillaw, and it reads as follows:
"We are a firm of chartered accountants who have been acting for La Strada Ltd for the past 3 years. I am writing to you with respect to the appeal on the recent judgment to this case. I can confirm that Mr Angellotti was employed from 1/5/99 with La Strada Limited and not with Mr Norian. I am enclosing a copy of the P60 for Mr Angellotti which has been submitted to the Inland Revenue and also the payslip booklet ……."
[6]The Extended Reasons from the Employment Tribunal, which were received by the Employment Appeal Tribunal on 11 June, but sent to the parties on 3 May, recite simply that the Applicant was employed by the Respondent, who is described as Mr Norian, trading as La Strada Restaurant, as a chef, and the conclusion is reached, as I have indicated, in the absence of evidence, that he was unfairly dismissed.[7]After the issue was raised under Rule 3, a letter of 13 August 2002 was written by the Appellant to the EAT, seeking to substantiate his case that he had an appeal which fell within the jurisdiction of this Tribunal, and he said as follows:
"….I have now reviewed all the documents in my possession and in particular the decision made by the Chairman of the Employment Tribunal on 2 nd November 2001….."
Of which, of course, he had received Extended Reasons on 3 May, or some time after 3 May 2002. "The Summary Reasons given by the Chairman are initially based upon the 'applicant's evidence on oath' . The evidence considered was both oral and documentary. My points of law are: 1. The Applicant Mr G Angellotti lied under oath to the tribunal by alleging that he was employed by me, when in fact he knew from documents in [his] possession that he was actually employed by La Strada Limited. 2. The Applicant deceived the tribunal by withholding evidence as to his true employment status. 3. I have been denied an opportunity to show that the dismissal ……..[was effectively fair]" 4. ….The Chairman of the Employment Tribunal had a duty of care to me in my absence to ensure that I was treated fairly…… 5. I have been denied my Human Rights to a fair trial…….. Consequently, I am now wrongly blighted by a County Court Judgment with no apparent recourse." What the Appellant did not disclose to the EAT was the existence of a Decision made by the Employment Tribunal, by the same Chairman, Mr Cowling, sitting alone, refusing an application for review, by a Decision which was entered in the register on 22 April 2002, given on 3 April.[8]Those Reasons commence by stating that this had been a hearing to consider an application by the Appellant for a review; it is apparent that the Appellant was present and gave evidence. The Chairman recited, in paragraph 2 of the Extended Reasons, as follows:
"The Originating Application claiming that he was unfairly dismissed by the Respondent was presented by the Applicant to the Employment Tribunal on 25 May 2001. The Respondent was named as Mr Norian and his address was given as La Strada Restaurant, 20 Exeter Road, Bournemouth. From that date onwards, service of Employment Tribunal papers was made by post at that address. No documents have been returned by the Post Office indicating that they were not delivered. No Notice of Appearance was entered by the Respondent and on 5 September 2001 a Notice of Hearing in Form IT4 was sent by the Employment Tribunal to the parties listing the case for hearing at 10.30 am on 2 November 2001. When the case was called on 2 November 2001, the Respondent was not present or represented and the case proceeded in his absence."
And the Chairman then records what happened.[9]In paragraph 3, the Chairman states as follows:
"In evidence today the Respondent told the Tribunal that he did not receive the Notice of Hearing and was therefore prevented from defending the claim at the hearing on 2 November 2001. The Respondent claimed that the Applicant was not employed by him at the Restaurant but by a company called La Strada Ltd. He told the Tribunal that he was a director of the company with a Mrs Helen Thomas, who was Company Secretary, and that he owned 51% of the shares and Mrs Thomas owned 49% of the shares."
The Chairman then records the evidence that the Appellant gave, that, at the time the application was presented, La Strada Restaurant was receiving advice from Mr Shillaw, who was a friend of his. He said that he had received a letter from Mr Shillaw concerning the Employment Tribunal proceedings, but he could not give a date for it, and he gave the Tribunal an account of the departure of the Respondent from the restaurant, and that he had authorised Mr Shillaw to make an offer to the Applicant of £500 in settlement of the claim, in a "without prejudice" letter, which the Appellant asked the Tribunal to read, which had been written by Mr Shillaw on 3 August 2001. That letter made it plain that Mr Shillaw had had the opportunity to discuss matters with Directors of La Strada Ltd, in an attempt to reach a form of settlement, and a figure of £500, without prejudice, was offered. The Respondent explained to the Tribunal that this letter was sent on his instructions. He told the Tribunal that Mr Shillaw dealt with all correspondence received at La Strada Restaurant.[10]The Respondent said that he had been employed by La Strada Restaurant, but that he had left their employment on 5 June 2000, and the Chairman pointed out that this statement appeared inconsistent with the letter written by Mr Shillaw on 3 August 2001, on the Appellant's instructions. He was unable to say what had happened to La Strada Ltd, since he ceased to be a Director, and told the Tribunal that the restaurant was now owned and managed by a company called Tranquillo Ltd, and that he was engaged as an adviser to Tranquillo Ltd.[11]There was evidence from a Mr Tee, who said he was assisting the Appellant in setting up a future business, and that evidence, apparently, was inconsistent with the evidence of the Appellant in relation to the ownership of shares in La Strada Ltd. Since the hearing, and for the purposes of this appeal, the Respondent to this appeal, Mr Angellotti, with the benefit of advice from his local Citizens Advice Bureau, has sent to us an annual return, which is represented to be the most recent annual return, and which shows Mr Norian, the Appellant, as still being a Director, together with Mrs Thomas, of La Strada Ltd, although it reflects information apparently supplied on 24 August 2000, so that it may be that it is out of date.[12]The Tribunal concludes as follows in paragraph 8:
"8. It is the Applicant's case that the Respondent clearly received notice of proceedings and that the application for review should be dismissed. For the Respondent it is argued that the Respondent is not correctly named and that the correct Respondent should be La Strada Ltd. It is suggested that the Applicant was employed by La Strada Ltd and not by the Respondent. The application for review is made on the basis that the Respondent did not receive the Notice of Hearing sent to the parties on 5 September 2001" 9. If, as in this case, the Respondent to an Employment Tribunal application has failed to put in a Notice of Appearance, then not receiving notice of the proceedings is the only ground on which he can apply for a review of the Tribunal's Decision ….. If a Respondent finds himself in this situation, he should accompany the application for review with an application for an extension of time for entering an Appearance, since the Respondent can only defend the claim at the review hearing if an Appearance has been entered. Not only has there been no application throughout these proceedings by the Respondent for leave to enter a Notice of Appearance out of time, but there has also been no explanation offered for the failure to enter a Notice of Appearance to the Originating Application. This is despite the clear evidence from the Respondent that, prior to the hearing on 2 November 2001, he had notice of the application and in August 2001 made a written offer in an attempt to settle the claim."
[13]The conclusion by the Employment Tribunal was that the Appellant had failed to rebut the statutory presumption that the Notice of Hearing was served on him, but they do not leave it there, because the Chairman continues, in paragraph 11 as follows:
"The Respondent does not deny that he had notice of these proceedings or that he attempted to settle the claim. It is not in dispute that he failed to enter a Notice of Appearance. He did not attempt to defend the claim, either by suggesting that he had been incorrectly named as the Respondent or that the Applicant had not been dismissed from his job at the restaurant, or that if he was dismissed, he was dismissed fairly. A party cannot simply decline to defend Employment Tribunal proceedings and then apply for a review if the Tribunal's decision is unfavourable. A party who makes a conscious choice not to defend proceedings must take the consequences of that decision……"
[14]There has been, since the fixing of this hearing, the following communications, which include the company search to which I have referred. The EAT has been sent by the Respondent a bundle of documents which he wished the Tribunal to see. The first was the application for review by the Appellant, dated 3 April 2002, from which I have cited substantially, and which, as I have indicated, was not put before the EAT, for some reason, by the Appellant himself. The Respondent said as follows:
"The points which have been made by Mr Norian in his appeal have already been dealt with on review by Southampton Tribunal. This is a vital point."
He also enclosed four copies of two documents. One was a P60, showing that his employer was La Strada and not La Strada Ltd, which was the same document as had been sent to the EAT by Mr Norian, but without the handwritten addition of the word "Ltd". Secondly, payslips - those payslips, of which there are a number, have company names "La Strada" at the top, as compared with the document that was supplied by Mr Shillaw to the Tribunal, under cover of the Notice of Appeal, to which I have referred.[15]Of course, the position is no longer the case, as it used to be, that by automatically leaving off the word "Ltd", directors of a company are thereby rendered personally liable, but, equally, it is the case that if the employer is not described as "La Strada Ltd" but simply as "La Strada", it leaves at least open for argument the issue which here was resolved as a matter of fact, in his absence, against the Appellant, namely that it was he trading as "Strada Restaurant" who was the employer, and not "La Strada Ltd".[16]The other document that was sent was a response by Mr Norian himself, addressed to the President of the EAT, dated 16 December 2002, and it reads as follows:
"Today, Patricia Carter for the Registrar telephoned me and requested that I supply you with a written explanation as to my non-attendance at the Employment Tribunal Hearing, which took place in Southampton on 2 nd November 2001."
I do not understand that that was in fact what was asked of Mr Norian; what I understand occurred was that at my own request, the specific terms of the Practice Direction were drawn to the attention of Mr Norian, the Practice Direction requiring that, in respect of any appellant who seeks to appeal where he did not put in an original Notice of Appearance, proper explanation as to the failure, and, indeed, what has not occurred in this case in any event, a draft of the proposed Notice of Appearance, indicating the nature of the merits of any defence, should be included with full particulars of the nature of his case. It is certainly right, however, that, although there has not been specifically a draft Notice of Appearance, the general nature of the defence that would have been put forward has been indicated; no case has been put forward in any particularity for denying the unfairness the dismissal, but the case certainly has been put forward, as I have indicated, on the basis of the denial that Mr Norian himself was the employer.[17]But what has not been done, in any detail or, at any rate, anything more than appeared below, is the giving of any explanation for the absence of a Notice of Appearance. The letter then continues:
"Please be advised that I did not attend the said Hearing because I did not receive the Notice of Hearing which apparently was sent by the Employment Tribunal to La Strada Restaurant on 5 th September 2001. I in fact left the service of La Strada Limited on 15 th August 2001. I only became aware that a Hearing had taken place in my absence when I received the Tribunal's decision …… which had been redirected to me by the new manager. …..I would point out that all correspondence during my term of office was passed to the company's accountants of La Strada Limited for action and no administration whatsoever was carried out at the restaurant itself."
The position here is clearly that there is nothing in that letter which was not put before the Employment Tribunal on the review application which, as I have indicated, was unsuccessful. Insofar as there is some case put forward on the merits, it is, at the very least, ambiguous and, at the very least, equally consistent with the Appellant having been the employer, that he should have been a and probably the material Company Director of La Strada Ltd, but that, in any event, irrespective of that fact, the tax documents appear not to have referred to "La Strada Ltd", but rather to "La Strada", rendering him, at least, at risk of personal liability.[18]But further, no explanation has still been put forward as to the failure to deal with putting in a Notice of Appearance, when it is clear, as the Chairman of the Employment Tribunal found on the review, that he knew of the existence of the application, and, indeed, gave instructions for a "without prejudice" offer to be made to resolve the claim. This is a case which plainly amounts to an appeal solely on the points of fact, a fact which had been resolved against the Appellant, not simply at the hearing of which he had no notice, but at the review hearing which was carried out subsequently, and which, for whatever reason, was not brought to the attention of the EAT by him when he issued his Notice of Appeal, but only by the Respondent subsequent to it.[19]In all those circumstances, I am satisfied that this appeal should be dismissed under Rule 3(10) and I uphold the Registrar's decision to that effect.