Appeal No.EAT/858/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
THE HONOURABLE MRS JUSTICE SMITH
MRS D M PALMER
MR G H WRIGHT MBE

MARBLE WOOD LTD T/A CAFE FRESH	APPELLANT

MR C T McDONALD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR MICHAEL COY
(of Counsel)
Messrs Beller & Co
Solicitors
43 Portland Place
London W1N 3AG	

	MRS JUSTICE SMITH:     This is the preliminary hearing of an appeal against the decision of an Industrial Tribunal, made on 30 March 1998, which found that Marble Wood Ltd, the Appellant, was in breach of the Respondent’s contract of employment and had subjected him to racial discrimination.  They ordered payment of compensation and interest in the total sum of £6,466.  The Respondent, Mr McDonald, who is of Rumanian origin, was employed as a chef and assistant manager by the Appellant from 15 February 1997 until 25 October 1997, when he was dismissed.

	On 23 January 1998 he lodged a complaint at the Industrial Tribunal.  On the IT1 he gave the Appellant’s address as 1 Bethink Street, London W1M 5RN.  The Appellant’s actual address is 1 Bentinck Street.  However, the post code W1M 5RN was correct.  The Appellant trades as Cafe Fresh, but the Respondent’s writing was not entirely clear on the IT1 and the office read the word “Cafe” as “Cape”.  The IT1 was not returned undelivered, although the Appellant now claims that it was not received.

	On 5 March the Industrial Tribunal Office sent a letter to the Appellant which they acknowledge they did receive.  This advised them that they had failed to lodge a Notice of Appearance.  The letter said:

“As no reply has been received to our letter of 28 January 1998, a Chairman has instructed that this case be listed as Appearance Not Entered.
It is at the discretion of the Tribunal whether or not a late Notice of Appearance is accepted.
A notice of hearing will be sent in due course.”

	On 6 March, the following day, a letter was sent from the Industrial Tribunal Office to the Appellant and it is accepted that this letter was also received.  It informed the Appellant that the application of Mr McDonald would be heard on Monday 30 March at 10 o’clock or so soon thereafter as possible.  It continued:

“1  You are responsible for ensuring that all the witnesses ... can attend on the hearing date.
2  Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this notice.  Any such application must be in writing and state the full grounds and any other unavailable dates in the six weeks following the above hearing date.”

Attached to that Notice of Hearing were guidance notes about attendance at the hearing and other matters.

	Before 30 March, ACAS were in touch with the Appellant.  We do not know the detail of that contact, but it is accepted by Mr Coy, on the Appellant’s behalf, that an ACAS representative spoke to his client.

	On 30 March Mr Berdah attended the Tribunal on behalf of the Appellant.  He asked for an adjournment.  According to the Tribunal’s Extended Reasons, he was unable to give any explanation why an Appearance had not been entered and he had no instructions to deal with the matter, save to ask for an adjournment.  It is clear from that that he did not say that the Appellant had not received proper notice of the proceedings.  It is clear also that he did not say that they had not received the IT1.  

	The Tribunal refused the adjournment requested and did not permit Mr Berdah to take part in the proceedings.  The case proceeded as we have indicated and a decision was made.

	On 31 March the Appellant requested a review.  It appears that the request was deferred until Extended Reasons had been provided, as they were on 7 April 1998.  On 13 May a formal application for review was submitted, drafted by Counsel, and exhibiting correspondence.  It claimed that no adequate notice had been given of the hearing; there had been no time to prepare the case or arrange representation.

	On 18 May the Chairman refused the application for a review on the basis that there were no reasonable prospects of success.  This appeal followed.  The grounds of appeal are in the same terms as the application for the review.  In effect, it has to be argued that the refusal of the adjournment and/or the refusal of the Chairman to allow Mr Berdah to take part in the proceedings were perverse or revealed some other error of law.

	Dealing first with the adjournment.  An adjournment is a matter for the Tribunal’s discretion.  This Tribunal was not told that the Appellant had not received notice of the proceedings.  Even if they had been we do not think that the decision was perverse.  The Appellant had had notice of the proceedings since about 6 March and had taken, so far as we are aware, no step either to telephone the Industrial Tribunal office to find out what was happening or to take advice from a solicitor or employment consultant or some other person, who would be in a position to explain to them that which they should do.  They did nothing, it appears, and we do not consider that the Tribunal’s decision to refuse an adjournment could be described as perverse.

	Second, we consider the basis upon which the Chairman refused to allow Mr Berdah to take part in the proceedings.  Rule 3 (1) of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (as amended) provides:

“A Respondent shall, within 21 days of receiving the copy of the Originating Application enter an appearance to the proceedings by presenting to the Secretary a written Notice of Appearance.”

	The rule provides for what that must contain.  Rule 3 (2) provides:

“A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except ...”
There are various exceptions to that rule none of which apply to the present case.

	Mr Coy in argument this morning has accepted that, if the Tribunal make either an express or implied finding of fact that the Appellant has received the copy of the Originating Application, rule 3 comes into play.  The Tribunal is obliged to apply Rule 3 (2) and the Appellant is then not entitled to take any part in the proceedings.  This Chairman was not told that the Appellant had not received a copy of the Originating Application.  In those circumstances there is an implied finding of fact in the Extended Reasons that the Appellant had received that document and the Chairman was entitled to debar the Appellant from taking part in the proceedings pursuant to Rule 3 (2).  

	Mr Coy accepts the logic of that argument.  He seeks to persuade us that the principle of audi alteram partem should apply.  Of course, we accept that that must generally be so and a party will only be deprived of the opportunity of putting his case in unusual circumstances.  Here we cannot see that it is arguable that this Appellant has been subjected to any injustice.  He did not tell the Tribunal that he had not received the Originating Application.  Moreover, as we have indicated, he did not disturb himself in any way to respond to these proceedings other than by attending on the hearing date and asking for an adjournment, a request which he was unable to justify.

	Consequently, it is our view that the grounds set out in this appeal are unarguable and for those reasons this appeal must be dismissed at this preliminary stage.