THE MARLBOROUGH HOTEL v MR K E MEIRIS [2006] UKEAT 0256_06_0809

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2006] UKEAT 0256_06_0809

Case No Appeal No. UKEAT/0256/06

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

THE MARLBOROUGH HOTELAPPELLANT

MR K E MEIRISRESPONDENT

Before

His Honour Judge Pugsley

Date 8 September 2006

[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 SUMMARY Practice and Procedure – Withdrawal Practice and Procedure – Absence of party Appellant had paid a claim to the Applicant after an agreement with the Applicant. He did not complete the ET3 because he considered the matter settled. ET not contacted by the Applicant for claim to be withdrawn. Judge Reid QC required them to see affidavit by Appellant rectifying matters. The Applicant Respondent did not appear. Appeal allowed as Applicant already received sum he agreed was owing. Appeal allowed. HIS HONOUR JUDGE PUGSLEY This is a case in which HHJ Reid cleared on his own on 12 June 2006. The terms of his Judgment were in these terms:

"The history of this matter is slightly convoluted because what happened was after the Respondent, Mr Meiris was dismissed and brought these proceedings, there are communications between Mr Meiris and Mr Mills. As a result of these communications, Mr Mills send Mr Meiris a cheque for £389.63, being an amount they agreed between them as the outstanding amount of Mr Meiris's wages. When Mr Meiris's ET1 reached Mr Mills he wrote to the Tribunal indicating that the matter had been settled. He had also written to ACAS indicating that the matter had been settled. Regretfully it appears the letter saying the matter had been settled did not reach the Employment Tribunal. With the result though that neither side appearing, the Employment Tribunal took the view that this was a case where there was no ET3 and made an order effectively for the amount of the complaint. Mr Mills then wrote to the Employment Tribunal when he received the Judgment and there appears to have been some delay on the part of the Tribunal because there was nothing from them until two days before the time for appealing ran out when it was suggested that he should appeal. HHJ Reid commented it is not entirely clear why he should not go back to the Employment Tribunal for a review."

[2]The matter is then set down and what HHJ Reid said was this, and most simply with Mr Mills in person:

"Try as I might I find no way of disposing this appeal today. All I can do is to direct that it be set down for a Full Hearing, time estimate one hour, and direct that Mr Mills put in an affidavit in short form setting out the story that appears from his letters and from what he has told me today."

[3]The case was then directed and it should be listed that Mr Mills has indicated that the amounts involved in expense would rely on written representations, and the Judge approved that of course. But what has happened is I have now got a affidavit from Mr Mills, sworn before Geoffrey Parker & Borne of 1 John Street, Stratford Upon Avon, and in that Mr Mills deposes as follows: 1. Mr. Meiris claimed he was owed 18 days pay from 23. June 200 to 11 July 2005 (see Doc. 1 8.3) 2. We did not agree with Mr. Meiris in that he had already been paid up to the 30 th June by cheque — We always pay approximately one week in advance of the end of the month so that the cheque clears the bank by the end of the month. We did however agree that he was owed 11 days pay and I agreed I would send him a cheque to cover this amount. 3. I wrote to Mr. Meiris on 3 November (see Doc. 4) enclosing a cheque for £389.63 which was cleared through our bank on 8 November (see Doc. 6). In this letter I said this was in "full and final settlement" and have not heard anything from Mr. Meiris since!! 4. When I spoke with Mr. Meiris and we agreed that he was only entitled to 11 days pay I asked him then to please inform Mr. Shilton of ACAS and the Small claims Court of our agreement. He assured me he would do this. 5. I also wrote to Mr. Shilton (see Doc. 5) on 2 November informing him of our agreement but received no reply. 6. Since I had not heard from Mr. Shilton or the court and the cheque had cleared through the bank, I, in good faith, thought Mr. Meiris had carried out his side of the agreement. 7. I was shocked in early December 2005 to receive a judgment against The Marlborough Hotel. My secretary telephoned the Employment Tribunal to find out what had happened. She spoke to Miss Arnold and from this conversation it seems that the information did not get through to the tribunal. We were given to understand if we followed up this telephone call with a letter of explanation this should suffice. 8. We mailed a letter (see Doc.8) by recorded delivery on 21 December and did not receive any acknowledgement. Since we hadn't heard we decided to telephone to check if everything was in order only to be told we had two days to lodge an appeal!! 9. Since Mr. Meiris received the cheque in settlement of his claim he at no time has contacted myself or it seems the Tribunal. I believe Mr. Meiris should have made the Tribunal aware that he was no longer pursuing his claim and that, in not doing so, he has misled the Tribunal and has cost The Marlborough Hotel a lot of unnecessary expense. 10. During all the stages of this claim we believe that we acted in good faith at all times and on principal have tried to comply with court procedures. We also believe this case should never have got to a preliminary hearing.

[4]That is the affidavit . It is very significant that Mr Meiris has made no attempt to enforce the Judgment against the Hotel. I think in the light of HHJ Reid's Judgment I follow his view, that it is the affidavit that tells the whole of my story, sufficed for the written submissions. It seems to be the case that he had the money, he has not bothered to tell the Tribunal. They in error, but understandably so, heard and made a decision which overlooked the fact that it is well established on the correspondence that there was a payment of this sum. The matter was not withdrawn as it should have been by Mr Meiris, the unfortunate Marlborough Hotel got themselves into the quagmire they did.

[5]I therefore allow the Appeal and say for the public record there has been no appearance by Mr Meiris at this Tribunal, or certainly not in this room. The Appeal is allowed. The Claimant's claim has been dismissed and the Marlborough are not under any legal liability to pay any money other than that which they already have.