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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Rhodi Manufacturing Ltd v. Bhayat [2001] UKEAT 1274_00_1605 (16 May 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1274_00_1605.html Cite as: [2001] UKEAT 1274__1605, [2001] UKEAT 1274_00_1605 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE CHARLES
MR D CHADWICK
MS G MILLS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | MR S CLEGG (Representative) Instructed By: Messrs Barber & Co Solicitors Barber House 164 Deepdale Road Preston Lancashire PR1 6PY |
MR JUSTICE CHARLES:
"2 The Tribunal found the following facts proved. The applicant was employed by the respondent as a machinist from 1 May 1999 to 11 February 2000, when she was dismissed. The last day she actually worked for the respondent was 28 January 2000. On 25 January 2000 the applicant informed the respondent that she was pregnant and would begin her maternity leave in the week commencing 20 February 2000. Her expected date of confinement was 30 April 2000. Her notification of pregnancy was sent special delivery to the respondent and proof of delivery was before the Tribunal at document A21. The reason that the applicant left it so late to inform her employer of her pregnancy was because she did not want to be dismissed. Another girl at the factory called Hafida, was dismissed instantly when she announced her pregnancy and said that she wanted to go on maternity leave. The applicant's normal working hours were from 9 am to 5:30 pm Monday to Friday and her contractual working hours were 39 per week. The applicant arrived at the respondent's premises on 31 January 2000 to be told to go home. As with Hafida, the applicant was told that due to a shortage of work there was no work for her. She was told this by her boss, whom she knew as Asif Patel, also known as Asif Desai. The applicant had been a machinist in the jeans department from November 1999 and knew that the jeans department was extremely busy day (sic). The applicant asked when she would start work again and Asif replied that she was to keep trying. When the applicant turned up for work each day and was told that there was no work for her, she noted that others were working as usual.
3 The applicant then attended the respondent's premises for two weeks, but was given no work. When she finally attended on 11 February, Asif told her that she was dismissed. She asked for written reasons for her dismissal and for her pay. He informed the applicant that she should not bother coming to the premises again, because she would not receive any written reasons for her dismissal, nor would she receive a penny from the respondent. The applicant was extremely distressed at being dismissed. Her wages formed a significant part of the family's budget. She received no statutory maternity pay, because of this dismissal. She had no written contract of employment and despite a letter being sent on her behalf from the Citizens Advice Bureau asking for written reasons, none have been received. She was not paid for statutory holidays. A questionnaire under section 74 of the 1975 Act was served on the respondent directly by the Citizens Advice Bureau. No reply has been received.
4 Finally, on Friday 30th June 2000 Asif Patel telephoned the applicant and said that if she went to Tribunal he would petrol bomb her house. These threats were reported to the police. Then a person called Feroze telephoned the applicant at 11 pm on the 3rd July 2000 and threatened her. She was offered £1500 not to appear before this Tribunal. The Tribunal noted with concern a statement from Mr J.R. Withers of the Citizens Advice Bureau that he had been informed by the applicant's husband that there [had] been threats to the family from the respondent and that these threats were thought to be of such a serious nature that the police were informed. The applicant appeared at Tribunal unrepresented, because the Citizens Advice Bureau would not permit Mr Withers to represent her, because of the possible repercussions for himself and others in the Bureau."
"11 The Tribunal was extremely concerned at the behaviour of the respondent and the allegations of threats against the applicant. The fact that the applicant's representative was deterred from appearing before the Tribunal and the applicant herself might have been frightened into failing to appear made the respondent's alleged actions very serious indeed. [This] amounted to an interference with the administration of justice. The Tribunal acknowledges that it has not heard from the respondent, but the respondent's attitude has been so unsatisfactory throughout the conduct of this case and the Tribunal finds the applicant's evidence so credible, that it has decided to awarded aggravated damages to the applicant. The Tribunal awarded £5000 in injury to feelings, with a further £5000 for aggravated damages. It considers £5000 injury to feelings to be appropriate. This applicant was dismissed at a time when she was considerably vulnerable. This was her first baby and her wages were an important part of her family's income. It represents less than a year's wages."
"The respondent did not enter an appearance. On the morning of the hearing, the Tribunal received a telephone call asking the Tribunal to waiting while a representative attended. The Tribunal waited some time and in fact dealt with another case first. By that time the representative had still not arrived and the Tribunal received another telephone call from the respondent asking if the case could continue if the representative started out at that point. The Tribunal refused and went ahead with the case."
"We write to advise you that we have been instructed by the Respondent to act on their behalf on the above matter.
To that end, we duly make this application for a review of the decision promulgated on the 23rd August 2000. We make this application for the review on the following grounds:
(1) that our client was absent from the hearing when the decision was reached. He made desperate attempt to attend but arrived late as he was unfamiliar with the area and informed the Tribunal about the possible delay.
(2) That a review should be granted in the interest of justice.
We look forward to hear from you soon."
The response to that is a letter dated 5 September 2000, the next day, from the Employment Tribunal which is in the following terms:
"I acknowledge receipt of your letter dated 4 September 2000, copies of which have been circulated as indicated below.
The file was referred to a Chairman of the Tribunals, Ms E. Donnelly, who has requested that I respond in the following terms:
Thank you for your facsimile of 4 September 2000 which has been referred to the Chairman of the Tribunal who presided at the hearing. She draws your attention to Rule 3(2)(c) of the Employment Tribunals Rules of Procedure 1993 as amended (the Rules). The only ground on which a respondent who has not entered an appearance can request a review is that they did not receive notice of the proceedings leading to the decision. Your client clearly did and therefore there is no jurisdiction for the Tribunal to consider a review of its decision. Your client's only course of action is to appeal."
That is what the Rhodi Manufacturing has done.
7 "I set out from my home in Blackburn at 8.15 am on the morning of the hearing to the Liverpool Employment Tribunals. The hearing was scheduled for 9.45 am and I believe that I have allowed myself ample time to be at the hearing.
8 I travelled along the M65, then the M66 and then onto the M62. I travelled down the M62 for about 2 miles when the traffic slowed down due to an accident about 10 miles down the motorway.
9 As a result of being held up in the traffic due to that accident, I eventually arrived into Liverpool at 10.45 am and was now looking for the Tribunal Building.
10 After finally finding the Building and parked my car, I walked to the Tribunal Building where I arrived at 11.35 am approximately.
11 Once in the building, I was directed by a security officer onto the floor where the hearing was taking place.
12 I went into the reception area and could not find anyone but there was a telephone for assistance.
13 I called the receptionist/secretary who told me that the case had already started and I was not allowed access to the courtroom but told that I shall receive the Tribunal's decision in writing.
14 I left the Tribunals Building almost immediately and went back to the office to inform my employers of developments from that morning."
(a) Rule 3 which was referred to by the Chairman, provides as follows:
"3(1) 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 …"
(it then sets out what that should contain) and continues:
"3(2) A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except –
(a) to apply under rule 15 for an extension of the time appointed by this rule for entering an appearance;
(b) to make an application under rule 4(1)(a);
(c) to make an application under rule 11(4) in respect of rule 11(1)(b);
(d) to be called as a witness by another person;
(e) to be sent a copy of a document or corrected entry in pursuance of rule 10(5), 10(10) or 10(11);
and in the rules which follow, the word 'party' only includes such a respondent in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes.
(3) A notice of appearance which –
(a) is presented to the Secretary of State after the time appointed by this rule for entering appearances, and
(b) sets out the reasons why the notice has been presented after that time
shall be deemed to include an application under rule 15 for an extension of the time so appointed on the grounds disclosed by those reasons.
(4) Where a chairman grants an application under rule 15 for an extension of time so appointed (including an application deemed to be made by virtue of paragraph (3)) he shall determine whether, having regard to the grounds of his application, it would have been reasonably practicable for the respondent to present his notice of appearance within the time so appointed. If the chairman determines that it would have been so practicable, the respondent shall be treated as having acted unreasonably for the purposes of rule 12(1) and the chairman shall make an order under that rule if he considers it appropriate."
Rule 12(1) relates to Costs.
(b) Rule 9(3) provides:
"9(3) If a party fails to attend or be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."
I pause to comment that this sub rule refers to a "party" and that it therefore has to be read with a qualification in rule 3(2).
(c) Rule 13(1) is a general rule relating to the procedure of an Employment Tribunal which provides:
"13(1) Subject to the provisions of these rules, a tribunal may regulate its own procedure."
(d) Rule 11 is the rule relating to Review and it is in the following terms:
"11(1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that –
(a) the decision was wrongly made as a result of an error on the part of the tribunal staff;
(b) a party did not receive notice of the proceedings leading to the decision;
(c) the decision was made in the absence of a party;
(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or
(e) the interests of justice require such a review.
(2) A tribunal may not review a decision of its own motion unless it is the tribunal which issued the decision.
…
(4) An application for the purposes of paragraph (1) may be made at the hearing. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full.
…
"15(1) A chairman may on the application of a party or of his own motion extend the time for doing any act appointed by or under these rules (including this rule) and may do so whether or not the time so appointed has expired.
(2) An application under paragraph (1) shall be made by presenting to the Secretary a notice of application, which shall state the title of the proceedings and shall set out the grounds of the application.
(3) The Secretary shall give notice to each of the parties of any extension of time granted under this rule."
"The decision to refuse to admit the Respondent representative, Mr Rizan Chopdaat to the hearing to apply under rule 15 of the Employment Tribunals Rules of Procedure when he arrived at 11:30 am was wrong in law and perverse and in Breach of Article 6 of the Convention of Human Rights pursuant to the Human Rights Act 1998."
"Dear Miriam
As per our letter given on 19 November 1999 it is with regret that we are unable to offer you work after the Christmas holidays.
We would like to take this opportunity to thank you for all the hard work and loyalty which you have given to the company and wish you every success for the future."
Letters of 19 November are not included in the exhibits.
"All those employed within the shirt factory were made redundant and their contractual entitlements duly paid."
"We should also like to advise you that the appellants have continued to produce pay slips in Mrs Bhayat's name, indicating that she is still employed by them. We request information as to why the appellant are in fact doing so when it is quite clear that Mrs Bhayat ceased to be employed by the appellant company when he dismissed her on 11 February 2000 and no payments have been made to or received by Mrs Bhayat. I have enclosed the pay slip for your attention."