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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Austin Roberts Ltd v. Knaggs [2002] UKEAT 1197_00_1704 (17 April 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/1197_00_1704.html Cite as: [2002] UKEAT 1197_00_1704, [2002] UKEAT 1197__1704 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR K EDMONDSON JP
MR J C SHRIGLEY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellants | Mr A G Roberts Austin Roberts Limited Tarran Industrial Estate Moreton Wirral CH49 ISP |
For the Respondent | No appearance or representation by or on behalf of the Respondent |
MR JUSTICE LINDSAY (PRESIDENT)
"Dear Mr Knaggs
Despite previous letters regarding unauthorised absenteeism you continue to take time off without explanation. Your current sick note expired on 19.12.99. You were due back in work yesterday morning, as yet we have received no word from you or further sick note regarding your failure to return to work.
In view of the above you leave us with no alternative but to terminate your employment with this company. We enclose your P45."
He was paid wages in lieu of notice down to 19 January 2000 and, as I mentioned, he launched proceedings for unfair dismissal.
"I refer to the above tribunal, and as explained to someone in your office last week, and also to Mr Sullivan at ACAS, we did file a response when we received the original details, but this does not seem to have been received by yourself.
We will be contesting the claim, but as explained last week the date of 28th June 2000 is not convenient as I have a prior business appointment on this date and am not able to change this at the moment."
It is likely that there had, indeed, been some oral communication between the company and the Employment Tribunal because the fax message that I have just read was sent to an identified individual, Mrs P J Palin, at the Tribunal, rather than simply to an office.
"Further to my fax of 12-06-00 I would also confirm that I would not be able to attend a hearing during the week 10 -15 July."
I pause to mention that it does not seem to have been the company's case when it first sent in, as it claimed, a response to the Employment Tribunal that it had indicated dates on which it could not attend. On 15 June the Employment Tribunal answered the letter of 12 June, saying this:
"Thank you for your letter of 12 June 2000. A Chairman of the Tribunals has instructed me to say that at present you have not entered a Notice of Appearance and so cannot seek a postponement. You might, if you so wish, send us grounds of resistance urgently when the Chairman will reconsider the matter. At present the case remains listed for 28 June 2000."
"……. he was always short of money to comply with his employment conditions, he could call on a Friday afternoon to collect his wages (when off sick) in a very drunken state on a number of occasions"
The Notice of Appearance gives the company's postcode as "CH46 4TW".
"Thank you for the completed Notice of Appearance. A Chairman of the Tribunals has refused to validate your Notice of Appearance since it has been received out of time. He notes that you claim that you have previously sent a response. The case will remain in the list for 28 June 2000 and the first question for the Tribunal will be to consider whether to validate your Notice of Appearance.
You will need to produce evidence of how your company deals with post and indicate what documents you have received from the Tribunal."
So it is clearly stated that the question of validation will be the first question at the hearing on 28 June.
"3. The applicant was dismissed for taking unauthorised absences. That was misconduct.
4. The dismissal was unfair because no kind of procedure was followed for monitoring the applicant's health or hearing what he had to say about the accusation. The real problem for the respondents, a very small firm, was that the applicant was absent at all for a long time; he kept more or less in touch as to his absences and the reason for them.
5. The applicant contributed to his dismissal by being dilatory about getting in touch with the respondents whilst absent and about making medical appointments. We estimated his contribution as 30%.
6. The respondents could not have retained the applicant in employment for much longer than they did, certainly not beyond January 2000.
7. The applicant is entitled only to basic award and compensation for loss of statutory rights. He had 4 complete years' service. He was 35 when dismissed. His gross weekly wage was £220. His basic award is thus £880. His compensation for loss of statutory rights is £150. The total of £1030 is subject to a 30% discount, giving a final award of £721."
"It is totally unjust for the case to go ahead when only one side of the case is heard. Why did Mr Knaggs ask for the day off? Why when he was refused the day off did he suddenly become ill and leave work without permission to see a Doctor? Had he been allowed the day off work would he not have needed to see a Doctor?
Mr Knaggs had been given Three Official Warnings before his contract was terminated. Had he kept us fully informed and sent sick notes on time he would still be an employee of Austin Roberts Ltd."
" Thank you for your letter of 13 July 2000, which has been referred to the Chairman who dealt with this case. He has asked me to say that both your requests have been refused. Your company is not a party to this action since it has not lodged a valid Notice of Appearance. Thus, it has no standing to ask for reasons in extended form or a review."
So there we are; the Tribunal refuses a review and refuses Extended Reasons.
"The Tribunal claimed that we did not lodge a valid Notice of Appearance and therefore will not provide us with Extended Reasons.
A Notice of Appearance was completed and returned to Tribunals as soon as we received it. We sent a further letter to them requesting a postponement because we had a previous appointment which we had been trying to change but were unable to do so. We received a reply by post stating that they had not received a Notice of Appearance from us. A further Notice of Appearance was faxed through to us, this was completed and faxed back. We then received a letter saying that the Tribunal had refused to validate our Notice of Appearance as it had been received out of time. The letter also stated that the case would remain on the list for the 28th June (The day we couldn't attend) and the Tribunal would consider whether to validate our Notice of Appearance. We were told we would need to produce evidence of how our company deals with post. We sent a letter stating yet again that we could not attend on that date and also said we deal with our post as everyone else does, we put a stamp on it and place it in a post box, we also asked how they dealt with their post? (we have not received a reply to this).
This case was heard without our side of the case being heard, correct procedures were followed by ourselves. Three written warnings (after numerous verbal warnings) before his contract was terminated. We paid four weeks sick pay in lieu of notice. Surely a Company has the right to expect that their company rules be obeyed. This gentleman blatantly ignored all warnings. We had supported this gentleman with problems (outside of work) that had had over the years and had he respected our rules would have continued to do so. It is our belief that had we been present and put our side of the case to the Tribunal the outcome would not have been Unfair Dismissal."
"We were told we would need to produce evidence of how our company deals with post.
We sent a letter stating yet again that we could not attend on that date"
and so on, no such letter to the Employment Tribunal is in the bundle. The letter of 27 June was to the Applicant's representative. It does not indicate that it was copied to the Tribunal itself, and in any case, the letter does not quite say what the Notice of Appeal says that it says, in terms of putting on a stamp and placing it in a post box, and so on.
"The appellant would have received the notice of hearing which clearly stated that he was a 'respondent who had not entered a notice of appearance'. As far as I am aware, he did not contact the Employment Tribunals to query this statement. However, it was not until an ACAS officer began exploring conciliation and a settlement figure was presented to him did the appellant state that he wished to resist the application. ACAS pointed out to the appellant that he needed to submit a Notice of Appearance in order to resist the application."
On 30 October, adding final comments to the Employment Appeal Tribunal, the company said
"We can only say again that we made it quite clear that we would not be able to attend on the 28th June, we were led to believe that the case would probably be postponed."
"The Respondent contends that the Tribunal was entitled to refuse leave to rely upon the evidence of the Appellant in view of the total lack of any detailed information as to 'when the original Notice of Appearance was posted if at all', and its contents and, the failure to give any detail as to the reason for non attendance at the Tribunal, over and above the bald statement:
"….the date of 28th June 2000 is not convenient as I have a prior business appointment on this date and am not able to change this at the moment".
The Respondent remains in the same position at present. It is still unknown as to when the original Notice of Appearance was said to have been posted and how. No details were given as to any record kept of same or, its contents. No evidence has been presented as to the nature or importance of the 'business appointment'. Prior to such matter the Respondent is unable to make submission in greater detail as to the merits of the Appellant's case and therefore submit that having been given leave to appeal, it is incumbent on the Appellant to provide detailed evidence on such matters. The Respondent will seek further to consider this position and submissions as and when evidence is submitted."
That answer, that is provided by the Respondent, really goes only as to the refusal to validate, but a little later the Respondents indicated, on 16 August 2001, that they wished the answer to cover also the refusal to give Extended Reasons.
"IT IS CONSIDERED that there has been shown no exceptional reason why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993
AND IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused."
On 13 November 2001 the company appealed against the Registrar's Order. That, I think is as much as needs to be said of the chronological and procedural background to the matter.