H D HILL & SONS LTD v 1) MR C DUFFY 2) A P AEROSPACE PLC [2003] UKEAT 1238_02_1401

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1238_02_1401Case No Appeal No. EAT/1238/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
H D HILL & SONS LTDAPPELLANT1) MR C DUFFY 2) A P AEROSPACE PLCRESPONDENTS
Before
Mr Recorder J LubaSir Gavin LairdDate 14 January 2003
[1]APPEARANCES For the Appellant APPELLANT NEITHER PRESENT NOR REPRESENTED MR RECORDER J LUBA QC On 28 August 2002 the Employment Tribunal sitting at Hull heard a complaint from Mr Christopher Duffy that he had been unfairly dismissed by first Respondent, A P Aerospace Plc and, second Respondent, H D Hill & Sons Limited, to whom we will hereafter refer as "Hill & Sons." By a decision promulgated on 2 September 2002 the Tribunal upheld that complaint. It found that Mr Duffy had been unfairly dismissed and it awarded compensation amounting to a little under £30,000 to be paid by the Respondents. It also ordered, exceptionally, the Respondents to pay Mr Duffy's costs.[2]The Employment Tribunal's reasons were given in summary form in a record of decisions sent to the parties on 2 September 2002 and, more fully, in Extended Reasons given on 27 September 2002. Between those two dates the second Respondent, Hill & Sons, sought a review by the Tribunal Chairman. That was rejected by the Chairman for Extended Reasons that he gave on 14 October 2002.[3]By a notice of appeal dated 21 October 2002 Hill & Sons appeal to this Appeal Tribunal against the substantive decision of the Employment Tribunal that Mr Duffy was unfairly dismissed by them. By an order sealed on 14 November 2002, His Honour Judge Peter Clark gave directions for the case management of the appeal including a direction for a Preliminary Hearing. That hearing was fixed for today's date and by notice given on 6 December 2002 the Appellant was informed of this date. It acknowledged receipt of that notification by a letter written on its company letterhead dated 12 December 2002. That letter also purported to meet its responsibility, under the directions, to provide a skeleton argument.[4]The Appellant does not, by any member of the company or by any representative, appear at this hearing this morning. The case has been called on and no-one appears. There is no attendance. By fax, seemingly transmitted at 16.48 hours on Thursday of last week (9 January 2003), the Employment Appeal Tribunal office was informed as follows:
"Please note we are unable to attend the meeting on 14/1/03"
That note was simply endorsed in handwriting on a letter itself sent to the Appellant by the Employment Appeal Tribunal office on 23 December 2002. The note is not signed but simply initialled. The maker is indirectly identified as being a "Mr O Finn".[5]The first issue before us, in those circumstances, is whether we should proceed with this Preliminary Hearing this morning. We have no doubt that we should do so. The note before us does not seek any postponement. It does not explain why the Appellant is unable to attend. It does not explain why the company could not arrange representation. No explanation is given as to when it became clear that there would be an inability to attend this morning or why the Employment Appeal Tribunal office was only informed, so very recently, of that inability.[6]In all those circumstances we have no hesitation in deciding to proceed with this Preliminary Hearing this morning. One function of a Preliminary Hearing is to ensure that the appeal goes forward in an orderly fashion to a full hearing only if it raises a point of law which at least arguably has some prospects of success.[7]By the Notice of Appeal, as supplemented by the letter of 12 December 2002, the Appellant really seeks to pursue on the appeal two points. The first point relates to the fact that the Employment Tribunal heard Mr Duffy's claim in the absence of Hill & Sons or of any representative of theirs. In consequence, it is said that they were unfairly deprived of an opportunity to deploy their case in answer to the claim against them. That ground of appeal is, we find, entirely hopeless. It is not suggested that Hill & Sons had not had notice of the Employment Tribunal hearing. It is acknowledged that they had arranged representation by the same individual who would represent the other Respondent but that individual did not attend. Nor did any witness, or director of, or any other member of, the Hill & Sons company. There was simply no-one from Hill & Sons at the hearing to deal in any way with the serious claim made against them and listed before the Tribunal.[8]The person with conduct of the matter on behalf of both Respondents was identified in the Respondents' notice (the Form IT3) as being a Mr Andrew Stone. He did not attend the hearing before the Employment Tribunal. What did occur is related in the Employment Tribunal's Extended Reasons at paragraph 7. We quote as follows:
"The day before the hearing [that is the hearing of 28 August] Mr Stone sent a fax to this Office saying that: i) the directors of the first respondent had petitioned for that company to be wound up; ii) the second respondent had been sold in a management buyout; and iii) the respondents' defence was based around the actions of the applicant in the involvement of WSI which was by then being investigated by the Serious Fraud Office."
Continuing to quote from paragraph 7 of the Tribunal's Extended Reasons they say this:
"He [Mr Stone] produced a copy of a notice issued by the Director of the SFO. He asked for the case to be postponed. A chairman said that he should attend the hearing in order to explain further his request for a postponement. At 9.55am on the morning of the hearing, Mr Stone rang this Office, having received a letter telling him of the chairman's decision that he should attend the hearing. He told a member of the Tribunal staff that he was now happy for the case to be heard in his absence. He said that neither company existed due to winding-up orders. He felt that if he contested the claim, he would only appear to be vindictive as the applicant would not and could not receive any pay. He said that it would be pointless to slur the name of the applicant as he still had an employment future elsewhere."
[9]That account of the history immediately prior to the Tribunal commencing its hearing was amplified in further material which is set out in the Extended Reasons given by the Chairman in dealing with the request for a review. We refer to paragraph 1 of those Extended Reasons sent to the parties on 14 October 2002. No material is before us today indicating why no-one from Hill & Sons was available at the Employment Tribunal on the date which had been fixed long in advance nor is there any sort of explanation tendered, or justification advanced, for the non-attendance of their nominated representative.[10]In those circumstances it seems to us there is no prospect whatever of successfully demonstrating on appeal that the Employment Tribunal's decision to proceed in the absence of the second Respondent was in anyway erroneous in law. For those reasons the appeal on the first ground is dismissed.[11]The second ground of appeal is that the Employment Tribunal erred in holding that Mr Duffy had been dismissed unfairly from employment both with the first Respondent and with the second Respondent, Hill & Sons. The point crisply made is that a person cannot have two employers in respect of the same work. This was not a point which had been raised by either Respondent in the IT3 nor had it been raised in any written representations to the Employment Tribunal prior to the hearing.[12]The Employment Tribunal's findings on this issue are, however, clear. They find at paragraph 2 of their Extended Reasons that Mr Duffy was first employed by the first of the Respondents in August 2000 as its Work Manager then as an Operations Manager. At paragraph 3 of their Extended Reasons they refer to the fact that from April 2001 he joined the Board of the first Respondent as Projects Director.[13]In relation to his employment by the second Respondent, Hill & Sons, the Tribunal record at paragraph 3 of their Extended Reasons that in September 2001 the first Respondent acquired the second Respondent company which became its wholly owned subsidiary and the Applicant became the Managing Director of the second Respondent. That Mr Duffy had employment with both Respondents is strongly indicated by a letter written to him immediately prior to his dismissal on 3 December 2001 which concluded with the words set out at paragraph 36 of the Extended Reasons. The material passage extracted from that letter being as follows:
"It is therefore my opinion that Mr Duffy has committed acts of misconduct in his capacity as a director and an employee of A P Aerospace plc and H D Hills & Sons Limited"
[14]The further fact before the Employment Tribunal, dealt with at Paragraph 37 of the Extended Reasons, was that in the letter of dismissal itself, given on 4 December 2001, the Applicant (Mr Duffy) was told that he was dismissed from employment both with the first and second Respondent with immediate effect. In considering whether he was in fact employed and dismissed by both companies the Employment Tribunal expressly had regard to the terms of those letters and to the terms of a further document entitled 'The Service Deed'.[15]No material put before us by the Appellant in this appeal even begins to demonstrate how the Employment Tribunal may have erred in law in reaching the conclusion that it did on the material before it. It is not suggested that there is some document or other evidential material which would be referred to in the appeal and which the Employment Tribunal did not consider but would have done or should have done.[16]The complaint appears to be that the Employment Tribunal did not explain how it reached the conclusion that Mr Duffy, having been initially employed by the first Respondent, came to be employed by a subsidiary company - the second Respondent and the present Appellant. We are quite satisfied that, in the passages to which we have referred, the Employment Tribunal amply explained how it reached the conclusion that it did i.e. that Mr Duffy was employed immediately prior to his dismissal by the two companies and that he was dismissed from his employment with both.[17]There is no point therefore in permitting the second ground of appeal to proceed to a full hearing because it too is without any substance and it is doomed to fail. In those circumstances we have no hesitation in deciding at this Preliminary Hearing that this appeal must at this stage be dismissed. Accordingly, we dismiss it.