KNIGHTS WORLDWIDE LTD v MR MARTIN MELHUISH [2003] UKEAT 1598_02_2506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1598_02_2506Case No Appeal No. PA/1598/02/DM & PA/1424/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
KNIGHTS WORLDWIDE LTDAPPELLANTMR MARTIN MELHUISHRESPONDENT
Before
Mr Justice BurtonDate 25 June 2003
[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 the hearing of two matters relating to the dispute between Knights Worldwide Ltd and Mr Melhuish. The first relates to an appeal by Knights Worldwide Ltd, which was made on 31 October 2002, against the refusal by the Employment Tribunal, sitting at Watford, of an adjournment application by the Appellant company of a case which was listed for hearing on 1 November 2002.[2]The basis of the application was that the main proponent of the Respondent and the Respondent's case, Mrs Pachtinger, was an Orthodox Jew and was concerned that if the case were listed on a Friday morning she would not get back from Watford Employment Tribunal to her home in Hendon in time properly to prepare for the Sabbath, according to her strict Orthodox traditions. The Tribunal, notwithstanding considering a letter supplied by a Reverend Hardman, on her behalf, declined to adjourn the case on the basis that they were satisfied that they would be able to start and finish the case in time for her to get back home well before the beginning of the Sabbath and in time for her to make the necessary preparations. As I understand it they listed the case for 10.00am. In the event, the case went ahead. As I understand it, it lasted, in fact, no more than an hour and a half, so that there was, in the event, no difficulty for Mrs Pachtinger, if she had wished to, to have gone straight home in time for the start of the Sabbath, even making allowances for the preparations before the Sabbath that are necessary. In any event, this was an appeal against that adjournment decision. The decision on an adjournment was entirely discretionary and no grounds are indicated as to why this Employment Appeal Tribunal would have been in a position to interfere, quite apart from the fact that, as I have indicated, in the event, no prejudice was suffered.[3]The appeal was considered by the Registrar in accordance with Rule 3 of the Employment Appeal Tribunal Rules . The Registrar concluded, under Rule 3(7), that the grounds of appeal, stated in the Notice of Appeal, did not give the Appeal Tribunal jurisdiction to entertain the appeal. The grounds which were set out said simply:
"I am appealing, that even if it started at 10am sharp it may finish after 12.am [I think she means 12pm] & I will not be able to arrive home by say 1315 IF THE HEARING IS RUSHED THE CASE MIGHT BE COMPROMISED"
All of that was, no doubt, what she asserted to the Tribunal (unsuccessfully, as it turned out) and does not found any point of law for appeal to this Tribunal.[4]As must be made clear, and is so regularly emphasised by this body, as an Appeal Tribunal we have no jurisdiction to hear any matters which are not points of law. I am entirely satisfied that the Registrar was right to reject the jurisdiction in relation to that appeal.[5]The second appeal, which was brought on 2 December 2002, was against the decision that was made on that day, 1 November 2002, the case not having been adjourned, as I earlier indicated. The Chairman, sitting alone, concluded in favour of the Applicant in respect of his applications under Sections 8-12 of the Employment Rights Act , for failure to provide written pay statements, or adequate pay statements, and in relation to his application under Section 13 of the Act, for unauthorised deductions.[6]The Notice of Appeal by Mrs Pachtinger, on behalf of the Respondent company, setting out the grounds on which the appeal was brought, said this:
"Application based on contained in enclosed "red bundle"! We believe the point of law used by Mr O'Brien is not applicable in our case"
The Tribunal's decision was that, insofar as there had been a reduction in Mr Melhuish's pay, that had been unilaterally imposed, contrary to the factual case that Mrs Pachtinger put forward, that he had agreed to it. In paragraph 4 of his decision, the Tribunal Chairman said this:
"Turning to the itemised pay statements, and I make it clear that where there are conflicts, and there are conflicts in the evidence, I have no hesitation in preferring the evidence of Mr Melhuish to that of Ms Pachtinger who struck the Tribunal as being somewhat biased in her outlook."
[7]Mrs Pachtiner's submissions, whether in a so-called 'red bundle' or otherwise, have been extremely lengthy. I have read them all, but I do not begin to be assisted by that document to myself identify, and certainly the document does not, so far as I can see, even begin to identify, any point of law to be argued on this appeal, or respects in which, given the undoubted right of a Tribunal when dealing with questions of fact to prefer the evidence of one side or the other, the Tribunal can be shown to have erred in law.[8]The Registrar made an order in this case, just as she did in the last, concluding that there was no jurisdiction in the Appeal Tribunal to hear this appeal, no error of law having been indicated. Mrs Carter, on the Registrar's behalf, wrote a letter dated 12 February 2003 indicating the Registrar's decision, that is, her decision under Rule 3(7). There is a right to disagree with a decision made by the Registrar under Rule 3(7). I read the relevant sections:
"(7) Where it appears to the Registrar that the grounds of appeal stated in the notice of appeal …do not give the Appeal Tribunal jurisdiction to entertain the appeal, he shall notify the appellant …. accordingly informing him of the reasons for the opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the appeal. (8) Where notification has been given under paragraph (7), the appellant …. may serve a fresh notice of appeal … within the time remaining under paragraph (3) …. or within 28 days from the date on which the Registrar's notification was sent to him whichever is the longer period. … (10) Where an appellant … expresses dissatisfaction in writing with the reasons given by the Registrar, under paragraph (7), for his opinion that the grounds of appeal stated in a notice … do not give the Appeal Tribunal jurisdiction to entertain the appeal, the Registrar shall place the papers before the President or a judge for his direction as to whether any further action should be taken on the appeal."
[9]The Respondent did not act promptly in response to the letter of 12 February 2003 and put in a proposed new Notice of Appeal under cover of a letter dated 26 March 2003, having earlier asked, by a letter wrongly dated, but in fact sent on 6 March 2003, for an extension of the time, which was refused. The time, in any event, expired on 12 March 2003, before receipt of the purported new Notice of Appeal on 26 March. Mrs Pachtinger, on behalf of the Respondent, was thus out of time for consideration of a fresh Notice of Appeal.[10]However, I have looked at the content of her fresh Notice of Appeal, and have been prepared to treat it as part of her objection within Rule 3(10), and to consider whether there is anything in any of the documents that she has put before this Tribunal, including her very latest documents, sent on 16 June, being two letters annexed to her notice that she did not intend to be present or represented at this hearing and would rely on written submissions.[11]Notwithstanding reconsideration of the existing papers, and consideration of the two fresh documents dated 16 June 2003, I can see no point of law whatever which would justify this appeal going forward. Consequently, I dismiss this application.