Appeal No.	 EAT/853/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR A C BLYGHTON
MRS J M MATTHIAS

MR A R KAYE	APPELLANT

(1) MRS S J GREENER	RESPONDENTS
(2) LIASADATA LTD (in Liquidation)
(3) FIRST CENTURY RETAIL LTD

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NOT PRESENT NOR REPRSENTED	
For the First Respondent

For the Second and Third Respondents	MS A COPPOLA
(of Counsel)
Free Representation Unit
Peer House
8-14 Verulem Street
London
WC1X 8LZ

THE SECOND AND THIRD RESPONDENTS NEITHER BEING PRESENT NOR REPRESENTED	

	JUDGE PETER CLARK:	

1.	This case has had something of a chequered history.

2.	The applicant, Mrs Greener, commenced these proceedings by an Originating Application presented to the London (North) Employment Tribunal on 25th June 1997. She named as respondents (1) Liasadata Ltd t/a Ricky or (2) First Century Retail Ltd, both companies controlled by Mr Alan Kaye. She complained, so far as is material, of non-payment of maternity pay. She gave as her dates of employment November 1993 to August 1996, when she went on maternity leave.

3.	By a Notice of Appearance signed by Mr Kaye as director and dated 4th July 1997 both respondent companies denied employing the applicant, at any rate after November 1995.

4.	The case was listed for a preliminary hearing on 17th October 1997. On that occasion the applicant was represented by Ms Coppola of Counsel under the FRU Scheme. She has since represented the applicant throughout. The applicant was then given leave to amend her form IT1 to add a claim of sex discrimination, and to add Mr Kaye as third respondent. The hearing proceeded no further; Mr Kaye failed to turn up and the matter was adjourned to 22nd December 1997. On 2nd December 1997 Mr Kaye applied for a postponement of that hearing on the grounds that he had a medical appointment. That application was granted by letter from the tribunal dated 8th December and Mr Kaye was directed to enter a Notice of Appearance.

5.	At this stage Mr Kaye instructed solicitors, Littlejohn & Co, who entered an appearance on his behalf stating that he had never personally employed the applicant.

6.	A hearing then took place before a tribunal chaired by Mr N A Halton on 13th January 1998. Both principal parties attended. Counsel, Mr Grundy, appeared on behalf of all three respondents.

7.	On that occasion the tribunal decided to investigate and determine the question as to who was the applicant’s employer. They found, in a decision with extended reasons promulgated on 16th June 1998, originally promulgated with summary reasons on 19th February, that the applicant was initially employed by a company principally owned by Mr Kaye, Springlake Ltd, in November 1992. Thereafter she was employed by Liasadata, which ceased trading in August 1995. She was then employed at an office in Stanmore. In November 1995 she moved with Mr Kaye to offices in St Albans. During the first few weeks of her employment there wages cheques drawn on First Century’s account at Lloyd’s Bank were returned unpaid. From January 1996 until she left on maternity leave in August 1996 she was paid in cash, either out of Mr Kaye’s pocket or on his authority out of the cash till. In these circumstances the tribunal concluded that from at least November 1995 until August 1996 the applicant was employed by Mr Kaye personally.

8.	Having so found the case was adjourned for further hearing.

9.	The next hearing was listed for 16th March 1998. On 23rd February Littlejohns applied for a postponement so that a further amendment to the Notice of Appearance could be effected. That application was refused by letter from the tribunal dated 25th February. Then a new tack was taken. On 4th March Littlejohns faxed the Employment Tribunal; Mr Kaye was to attend a buying exhibition in Paris on 16th March. This time the application for an adjournment was granted by the tribunal’s letter of 11th March.

10.	On 19th March Ms Coppola faxed a list of dates to be avoided for the adjourned hearing. Despite that a hearing notice was sent out for 9th April, one of her listed dates. As a result that date was also vacated. The new date was to be 22nd April.

11.	At this stage Mr Kaye lodged a Notice of Appeal dated 2nd April against the tribunal’s decision reached on 13th January, relying only on the tribunal’s summary reasons decision. Thereafter extended reasons were obtained.

12.	Negotiations took place between the parties with a view to compromising the claim. Whilst those negotiations were in progress the appeal came on for ex parte preliminary hearing before a division of the EAT on which I sat on 14th October 1998. On that occasion the matter was allowed to proceed to a full hearing on two grounds:

(1)	whether the Halton tribunal ought to have considered the issue of who was the applicant’s employer at the hearing on 13th January 1998, no prior notice of that issue being determined having been given to the parties, and

(2)	whether that tribunal erred in law in finding that Mr Kaye was the applicant’s employer.

	A direction for the Chairman’s comments on ground (1) was made.

13.	The time for filing a respondent’s answer by the applicant expired on 23rd December 1998. No answer had by then been filed. The reason for that was that Ms Coppola believed that negotiations would lead to a settlement. Indeed, a draft form of settlement was reached in February 1999. However Mr Kaye did not approve the settlement.

14.	In these circumstances, bearing in mind that the applicant simply relies on the reasoning of the Employment Tribunal in her draft Answer, we shall exercise our powers under Rule 26 of the EAT Rules and permit the applicant to file an Answer out of time and take part in the proceedings, notwithstanding objection taken by Littlejohns by their letter to the EAT dated 27th April 1999.

15.	The full appeal hearing having been listed for today, on 1st October Littlejohns faxed the EAT stating that they were unable to obtain instructions from Mr Kaye and would not be representing him at the hearing.

16.	Mr Kaye telephoned and faxed the EAT on 4th October, saying that in the past week he had had both an unspecified family tragedy and a major robbery at his business premises, necessitating a trip to Italy to acquire more stock. He asked that this hearing be adjourned.

17.	This morning Ms Coppola has attended before us to oppose that application.

18.	We have set out the history in some detail. It seems to us that there is no good reason why Mr Kaye should not be represented today by solicitors and Counsel, as he was at the preliminary hearing. No evidence is required. No further instructions are required. In these circumstances we refuse the application to adjourn.

19.	Turning then to the merits of the two grounds of appeal allowed to proceed at the preliminary hearing, we are satisfied, having received the Chairman’s comments under cover of a letter dated 13th May 1999, that the parties were given ample opportunity to call their evidence on the issue as to who was the applicant’s employer at the hearing on 13th January 1998. Further, on the facts as found the tribunal was entitled to conclude that Mr Kaye personally was the applicant’s employer from at least November 1995.

20.	In these circumstances we shall dismiss this appeal.