Fulthorpe & Anor v Heal (Contract of Employment : Damages for breach of contract) [2012] UKEAT 0420_11_2001

EAT
Fulthorpe & Anor v Heal (Contract of Employment : Damages for breach of contract)
[2012] UKEAT 0420_11_2001 · 2012-01-20
[1]There is before me for full hearing, on the direction of Wilkie J by an order dated 3 August 2011, the appeal by(1) Mr Jonathan Fulthorpe (“Mr Fulthorpe”) and(2) Asturius Europe Ltd (“AEL”), Respondents before the Southampton Employment Tribunal, against the remedy Judgment of Employment Judge Twiss dated 8 October 2010 following a hearing held on 17 September, ordering both Respondents, being jointly and severally liable, to pay compensation to the Claimant, Ms Heal, in the total sum of £37,411.80 in respect of her claims of breach of contract, unpaid wages and expenses, and a further £3,000 compensation for injury to feelings in respect of her complaint of sex discrimination. Written Reasons for that Judgment were promulgated on 1 April 2011. Procedural history[2]By a claim form ET1 dated 19 October 2008, presented to the Tribunal, the Claimant named as her employer, the Respondent, “Mr Jonathan Fulthorpe Asturius Ltd”. She complained that having started work for Asturius on 16 June 2008 she still had not been paid. She contended that her salary was agreed with Mr Fulthorpe at £60,000 per annum. In addition, she made a complaint of sex discrimination relating to a remark attributed to Mr Cousins, the CEO, that the Claimant had only got the job because she was “shagging” Ron Strange, a former director. In the event she later resigned from the employment on 31 December 2008.[3]The Employment Tribunal (ET) Rules require that a Respondent must lodge a response within 28 days. On 21 November 2008, in response to an email to the Tribunal from Mr Fulthorpe dated 4 November, Regional Employment

Judge Peters wrote as follows:

“The claim is against Mr J Fulthorpe/Austurius [sic] Ltd. If the title is incorrect then it can be corrected later. If no Response is submitted on behalf of Mr Fulthorpe, Austurius Ltd or Austurius Hospitality Ltd within the time given, then the case will proceed undefended.”
[4]On 2 November 2009, just over one year after the form ET1 was lodged, a default Judgment was promulgated by Employment Judge Cowling, on liability only, against the first and second Respondents to the claim, then described as “Mr Jonathan Fulthorpe Asturius Ltd”, the first Respondent, and “John Cousins (Asturius Europe Ltd)”, the second Respondent. Remedy was to be decided at a hearing to be notified to the parties. On 19 November 2009 Mr Fulthorpe wrote to the Tribunal asking that the default Judgment be withdrawn, otherwise the Respondents would appeal. No appeal was then lodged, but a review/case management hearing was held before Employment Judge Cowling on 5 February 2010. The review application on behalf of the first and second Respondents, then(1) Mr Fulthorpe and(2) AEL, failed, and the default Judgment stood against those two named Respondents.[5]On the same occasion Judge Cowling made case management orders that the case against the third Respondent, Asturius Hospitality Ltd (“AHL”), was stayed by consent and directions were given for preparation for a remedy hearing, which was later listed for 17 September 2010. Mr Dawson represented the Claimant on 5 February, and Mr Fulthorpe himself and the corporate Respondent. At the remedy hearing Employment Judge Twiss ordered compensation against the first and second Respondents jointly and severally, as I have earlier indicated.[6]On 16 November 2010 a Notice of Appeal was lodged, signed by Mr Fulthorpe on behalf of himself and AEL, against(1) the default Judgment of 2 November 2009,(2) the review decision made on 5 February 2010 and promulgated on 1 March, and(3) the remedy Judgment dated 8 October 2010. Plainly the first two appeals were out of time, and by an order dated 18 April 2011 the Registrar refused an extension of time for the reasons that she gave. There has been no appeal against the Registrar’s order. Consequently, the only in-time appeal to go forward to the paper sift was that against Employment Judge Twiss’ remedy Judgment. That is the only appeal now before me, following Wilkie J’s direction on the sift. The appeal[7]Mr Dawson, again appearing on behalf of the Claimant, points out that AEL is now in liquidation. It seems that a winding‑up order was made by the court on 15 December 2010, and I have been shown the official receiver’s summary, dated 24 January 2011, to which Mr Fulthorpe as a director of the company contributed. In these circumstances, Mr Dawson takes a preliminary objection to Mr Fulthorpe advancing the appeal on behalf of the second Appellant, AEL, now in liquidation. He has referred me to section 167 of the Insolvency Act 1986 , read with schedule 4 to that Act for the proposition that it is for the liquidator to continue litigation concerning the company in liquidation with either the sanction of the court or the liquidation committee. Mr Fulthorpe has been unable to show me that he is duly authorised to conduct this appeal on behalf of the liquidator, and in these circumstances I upheld Mr Dawson’s objection. I have therefore heard Mr Fulthorpe only in his personal capacity as the first Appellant.[8]Mr Fulthorpe does not challenge Employment Judge Twiss’ assessment of compensation payable to the Claimant following the remedy hearing. His case is that he ought not to be held personally liable to pay any part of that compensation. I see the force of that submission, given that on any view Mr Fulthorpe does not appear to have been the Claimant’s employer in his personal capacity. However, that is an argument that ought to have been put in a timeous appeal against the default Judgment and more particularly the review Judgment. Mr Fulthorpe is not unfamiliar with the legal process. He was called to the Bar in 1970 and was in independent practice, albeit specialising in urban regeneration and with no direct practical experience of employment law. He then retired from practice, and has devoted his attention to business in the hospitality field, hence his involvement in these proceedings.[9]Mr Dawson submitted that Mr Fulthorpe has shown a wholesale refusal to engage in the Tribunal process. That is not entirely fair. After receiving the default Judgment on 7 November 2009 Mr Fulthorpe wrote to the Tribunal on 19 November, effectively seeking a review of that default Judgment and indicating that he intended, if necessary, to lodge an appeal within 42 days (that is, the time limit for appealing to the EAT), but he did not lodge such an appeal in time. Instead, he waited until 16 November 2010 to do so. He then attended the review hearing on 5 February 2010. As he told me, he disagreed with the review Judgment of Employment Judge Cowling promulgated on 1 March in a number of respects. First, he did not believe that he was personally liable to the Claimant on her claim. Secondly, he did not believe that AEL was her employer; it was the third Respondent, AHL, the only Respondent treated as having entered a response form ET3. Thirdly, his recollection is that he did not consent to a stay of proceedings against AHL, as ordered by Judge Cowling. Fourthly, he did not believe that a stay ought to have been ordered; on his case, AHL was the Claimant’s employer and therefore liable to meet her claim in so far as it was made out.[10]In these circumstances, it is beyond my comprehension as to why he did not then launch a timeous appeal, he being aware of the opportunity to appeal to the EAT and the relevant time limit. Mr Fulthorpe was unable to give me any explanation for that omission. He tells me that he asked for the Employment Judge’s Reasons for the review Judgment, but they were not provided. That may be because he did not make the necessary written request (he has shown me no letter of request), but in any event Reasons are not required to launch an appeal to the EAT; the written Judgment is sufficient, and Reasons may later be requested by the EAT under ET rule 30(3)(b). Mr Fulthorpe did not wholly disengage from the process, because he attended the remedy hearing on 17 September 2010. It was only after the remedy Judgment was promulgated on 8 October that he finally launched these appeal proceedings on 16 November, in time for the remedy appeal, but out of time so far as the earlier Judgments were concerned, and in respect of those Judgments, the default Judgment and the review Judgment, the Registrar refused to extend time by her order of 18 April 2011. There is no appeal against her order, and I am unable to reopen the challenge to the default and review Judgments. Conclusion[11]The position therefore is, in my judgement, as Mr Dawson submits. There is an extant default Judgment against both Mr Fulthorpe personally and AEL, now in liquidation. That is a Judgment that conclusively determines that both those Respondents are jointly and severally liable for such compensation as the Claimant is entitled to and, as I have earlier indicated, Mr Fulthorpe does not challenge any part of the quantum of Judge Twiss’ award. I note from his Reasons (paragraph 12) that Judge Twiss considered apportioning the compensation for the injury to feelings element, of £3,000, between the two Respondents and decided not to do so. In reaching that conclusion he has properly anticipated the Judgment of Underhill P and members in London Borough of Hackney v Sivanandan and Ors [2011] IRLR 740. The liability for that head of loss, as with the lost earnings claim, is joint and several. In these circumstances, this appeal fails and is dismissed.