PETIA CHICKEROVA v MRS O HOLOVACHUK [2007] UKEAT 0016_07_2102

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2007] UKEAT 0016_07_2102

Case No Appeal No. UKEAT/0016/07

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

PETIA CHICKEROVAAPPELLANT

MRS O HOLOVACHUKRESPONDENT

Before

Mr Justice Langstaff

Date 21 February 2007

[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the Respondent THE RESPONDENT DEBARRED FROM TAKING PART IN THE PROCEEDINGS SUMMARY 2002 Act and Pre-action Requirements ET said to have no jurisdiction because ET1 issued less than 28 days after a grievance had been submitted. However, S32(6) saved the decision they reached: nothing was obvious from the papers nor drawn to the Tribunal's attention which meant they could have realised that that was the case. Appeal therefore dismissed. THE HONOURABLE MR JUSTICE LANGSTAFF As will become apparent from our judgment the only proper claim this case has to our attention is because of its bizarre facts and nature. It is in form an Appeal from a decision of the Employment Tribunal at London South of 25 July 2006. It ordered the Appellant to make a payment of £794 to the Respondent. This was in recognition of her claim that she had worked for the Appellant and before doing so had paid her a deposit of £200, was owed £294 and 2 weeks holiday pay at £150 per week.

[2]What was unusual to say the least procedurally was that when the Originating Application was served upon the Appellant she ignored it, because she did not think (or says she did not think) it referred to her since it misspelt her name by omitting one letter. Moreover, she thought it could not refer to her because she claimed she had no idea who the successful Claimant was. She had never replied to her, did not know her and indeed was not in business as was claimed by the Appellant.

[3]Those contentions found their way to a Review Hearing. The Review Hearing however had to be postponed because of the non-attendance at that stage of the Appellant. When eventually it took place both parties were present before the Tribunal and it was again claimed that the Appellant did not know the Respondent although the Respondent claimed to have worked for the Appellant as a cleaner. She did not work however in cleaning the Appellant's property, but apparently the Appellant acted as some form of intermediary in arranging cleaning work. The idea was that the Claimant would go to clean people's houses in response to arrangements made in the course of her business by the Appellant. That in any event was the allegation.

[4]The Tribunal found it almost impossible to determine which of the two to believe until they discovered that there was handwriting in a book produced at the hearing by the Claimant in which, said the Claimant, there was handwriting of the Appellant. The Appellant accepted it was her handwriting but maintained her denial that she had ever met the Claimant. Upon this basis the Tribunal decided that it would accept what the Claimant was saying in preference to the Appellant and thereby determined the claim in favour of the Claimant, and upheld the original Tribunal decision.

[5]It had emerged during the course of this that the Appellant had noticed no doubt because of the forms sent to her that the claim, which was a claim for arrears of wages, had not been brought more than 28 days after she had received the complaint in writing. This led to one of her several grounds of appeal to this Tribunal most of which raised issues of fact. The ground or the grounds came before His Honour Judge Reid on the sift. He thought there might be force in the first ground which reads as follows:

"The claim must not been accepted by the Employment Tribunal as the required period of 28 days between arising the complaint in writing and submitting the claim has not passed; therefore no further proceedings are relevant."

We have set it out exactly as it reads on the page.

[6]What then happened was that the Respondent failed to respond and has been debarred from defending. So she does not appear today before us. The Appellant despite the angry tone in which her Notice of Appeal is drafted also does not appear before us and has signed a note saying that she does not intend to be present or represented at the hearing and will rely upon written submissions. Accordingly this judgment has to be given to an empty Court room.

[7]The written submissions do not deal with the one point which His Honour Judge Reid thought might be worthy of argument. Instead, they repeat the grievance of the Appellant that the Tribunal should have preferred the words of someone she did not know against her own testimony and that there was no evidence to support the relationship which the Claimant had existed as one might have expected. These of course do not deal with the issue which we have to determine.

[8]As to that the answer we think is simple. Section 32(3) provides as follows:

"An employee shall not present a complaint to an Employment Tribunal under a jurisdiction to which this section applies (we interpose to say that covers deduction from wages claims such as this) if – (a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 has been complied with and (b) less than 28 days has passed since the day on which the requirement was complied with."

The requirement in paragraphs 6 and 9 is to make a written statement of grievance. This undoubtedly the Claimant did. She did so by means of a letter dated 18 April 2006. It was not until 16 May 2006 that she submitted her ET1, 28 days elapsed between the two. It is said by the Appellant that although the complaint is dated 18 April it is not actually received until a later date towards the very end of April.

[9]However, if one looks at Section 32(6) it provides as follows:

"An Employment Tribunal shall be prevented from considering a complaint presented in breach of sub-sections (2) – (4) but only if – (a) the breach is apparent to the Tribunal from the information supplied to it by the employee in connection with the bringing of the proceedings or (b) the Tribunal is satisfied of the breach as a result of his employer raising the issue of compliance with those provisions in accordance with regulations under Section 7 of the Employment Tribunal Acts 1996 (Employment Tribunal Procedures Regulations)."

It seems to us that neither condition was here satisfied. The information supplied to the Tribunal in the Originating Application gave the date of the complaint in writing. More than 28 days had elapsed since that date. There is no suggestion in any papers we have seen which went before the Tribunal that the complaint was effectively made on a later date as would be the case posting had been significantly delayed. Sub section (b) does not apply because the Appellant chose not to respond to the claim and therefore was not there to raise before the Tribunal the fact that she had received the complaint very much later than the date on the face of it would suggest.

[10]Accordingly since Sub section (6) prevents a Tribunal from considering a complaint presented in breach of Sub section (3) only if (a) or (b) are satisfied the Tribunal was entitled in our view to proceed, with the results, odd though they may be, that we have described. Accordingly there is no merit in this Appeal and it must be dismissed.