PHOENIX ELECTRICAL (UK) LTD v MR R I LEWIS [2002] UKEAT 844_01_1803

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 844_01_1803

Case No Appeal No. EAT/844/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

PHOENIX ELECTRICAL (UK) LTDAPPELLANT

MR R I LEWISRESPONDENT

Before

Mr Justice Lindsay

Date 18 March 2002

[1]APPEARANCES For the Appellant Mr Addy Director Phoenix Electrical (UK) Ltd 38-42 St Anne's Street Liverpool L3 3DX MR JUSTICE LINDSAY (PRESIDENT) We have before us by way of a preliminary hearing the appeal of Phoenix Electrical (UK) Ltd in the matter Mr R I Lewis against that company. Today Mr Rodney Addy, a director, has appeared before us representing the company.

[2]On 4 December 2000, Mr Lewis lodged an IT1 for what he called "money outstanding". He described the Respondent in his IT1 as Phoenix Electrical and he gave the address of Unit 1, Bassendale Road, Croft Industrial Estate, Bromborough, Wirral. He said that he had been laid off on one day's notice and with money owing to him, which, he said, despite repeated communication with the company, had not been paid. That was the nature of the claim.

[3]On 14 December 2000, the company, Phoenix, put in an IT3 giving its address as 26 Church Street, Dunstable, and it said - although the IT3 could easily be improved upon - that Mr Lewis, in effect, was owed nothing. On 27 April 2001 there was a Notice of Hearing giving the date 21 May for the hearing and it was sent to the Dunstable address, the address which Phoenix had selected and given for itself. On 21 May, in other words, on the very date that the Notice had referred to, there was a hearing at Liverpool, but no one appeared for the company; it was completely unrepresented.

[4]On 23 May, the Decision of the Tribunal was sent to the parties; the Decision was that of the Chairman, Mr M D Homfray-Davies, sitting alone and it was that:

"1 The respondent had made an unauthorised deduction of wages in the sum of £250.36, and I order it to pay him that sum."

And also the finding was:

"2 The respondent is in breach of contract by its failure to pay the applicant his due notice pay; and I order it to pay him damages in the sum of £190."

[5]The Decision, as I say, was sent to the parties on 23 May. On 25 June, the company wrote to the Employment Tribunal, (and, I emphasise, to the Employment Tribunal , rather than, as it should have been, to the Employment Appeal Tribunal) by way of intended appeal. It said, amongst other things, that it wished to appeal:

"on the basis that we received no notice of the hearing and therefore had no opportunity to attend the hearing and defend our position."

They said that:

"Mr Lewis obviously took advantage of our absence to mislead the Tribunal as to the situation regarding holidays, the fact that we had paid him the shift allowance which he claims had not been paid and also the fact that he did receive a final payment in settlement from us which he has obviously not disclosed to the tribunal. We would like to be given the opportunity of a further hearing to prove to the Tribunal that the package Mr Lewis received from our company was actually in excess of what he would have been due as had all deductions for holidays etc been taken into account he would actually owe the company £258.40"

[6]On 2 July of last year, within the forty two day period allowed for Notice of Appeal, which time runs from the date the Decision is sent to the parties, the company, Phoenix, sent a Notice of Appeal to the Employment Appeal Tribunal, sending with it a copy of its earlier letter of 25 June which it had sent to the Employment Tribunal. On 3 July the Employment Tribunal treated the letter it had received from the company as an application to review, but the review was refused as having been requested outside the fourteen day period. That is the position, subject to Mr Addy's appearance today.

[7]Employment Tribunal Rule 3(1) requests the Respondent in its Notice of Appearance to specify the address which it requires Notices to be sent to, and here, as we have mentioned, the company specified the Dunstable address. The Notice of Hearing, and we have got copies of it, appears to have been addressed to the Dunstable address, and the Employment Tribunal has confirmed that it was sent there. There is no evidence, strictly so-called, as to its not having been received there. There is just an assertion by Mr Addy that that is the case. We have got no explanation as to how mail was dealt with by the company concerned or as to who would have handled it on the company's behalf. We have no evidence that those persons who normally do handle the mail had not handled the Notice of Hearing, or something on those lines. There is no evidence of any enquiry after 14 December, when the company put in its IT3, to the Employment Tribunal asking what is going on or saying "We have not even heard of a date for the hearing: when will the hearing be and where will it be?" or something on those lines. There is no evidence of preparation for a hearing or that the company was simply awaiting a Notice of Hearing.

[8]The company has, it is true, produced some papers but they are not easy to assimilate in the company's favour. For example, there is a suggestion that Mr Lewis was paid £176.01 net or £195.30 gross for pay week 27 October 2000, but the company's business account shows £147.90 marked "Robert Lewis" in added handwriting , but for a different week, 7 December. So we have a different sum and a different week. There is a letter of 20 November 2000, which refers to a cheque to Mr Lewis, but does not say what its amount was.

[9]Whether the company could have mounted a successful argument, had only it attended at the hearing, is impossible to tell, but, despite what Mr Addy has told us, in the absence of evidence-strictly so-called, it is difficult for us to conclude other than that the company's non(receipt of the Notice of Hearing is not strictly proved before us. Mr Addy has been very candid with us and we do not doubt for a moment that what he tells us is the truth, but there were, apparently, some three individuals at the Dunstable office. Normally it was he, Mr Addy, who handled the mail, but he accepts that the position is that it was not invariably he who handled the mail; there might have been occasions when he was working elsewhere, or when others had arrived before him, which they might have done, and he very frankly accepts that it is possible that it was one of the other two who could have handled the mail in this particular case.

[10]We have discussed between ourselves whether there is any point in giving the company the opportunity of swearing strict evidence on the issues of the kind that we have mentioned, but, if the position remains, as doubtless it would, that the company's case could be, and would be, that it was possible that the mail was handled by someone other than Mr Addy, then it seems to us that a possible mishandling of the mail, given what Mr Addy tells us, could probably never be adequately disproved.

[11]The Employment Appeal Tribunal deals only, of course, with errors of law and, simply looking at the Tribunal's Decision, we are unable to spot one and in any event, the case that the company has sought to raise is more that it should have had an opportunity to respond rather than it would necessarily have succeeded in point of law had there been an ability to respond. For the reasons we have given, we do not feel able to assist Mr Addy or Phoenix Electrical and merely to adjourn, as we have said, for evidence would be unlikely to lead to any advantage and would, in a sense, merely waste the time of Mr Addy and of Phoenix and, of course, incur further expense.

[12]In the circumstances, although we do not doubt for a moment Mr Addy's truthfulness, we do not feel able to assist him and we must dismiss the appeal, even at this preliminary stage.