Appeal No.	 EAT/345/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 September 2000

Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY CBE
MRS J M MATTHIAS

(1) MR P ZIETSMAN  (2) MR P DU TOIT 	APPELLANTS
     t/a BERKSHIRE ORTHODONTICS

MISS J STUBBINGTON                                                                                            RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellants	MR J COPPEL
(of Counsel)
Instructed by
Messrs Leuty & Lynch
Solicitors
3 & 4 Market Place
Wokingham
Berkshire
RRG40 1AL	
.		

JUDGE PETER CLARK

1	The question in this appeal is whether the Employment Tribunal sitting at Reading on 21 January 2000, under the Chairmanship of Mr A Snelson, was entitled to conclude that the Appellant, Mr Du Toit, had been properly served with these proceedings brought by the Applicant, Miss Stubbington, and consequently to dismiss his application for a review of a decision made by the Chairman alone, sitting at Reading on 1 October 1999, upholding her complaints of both unfair dismissal and wrongful dismissal, and awarding compensation in respect of those claims, totalling £9,040.

2	The background   The Applicant was employed as practice manager by a firm called Berkshire Orthodontics which carried on business from 37 Crossway House, High Street, Bracknell, Berkshire.  Her employment began on 3 March 1997.  Initially the principal of the firm was a Mr P H Zietsman.  Mr Du Toit joined the firm as a dental assistant in 1995.  In April 1998, he became a full equity partner in the firm with Mr Zietsman.  From that time, he together with Mr Zietsman was the Applicant’s employer.  

3	On 24 March 1999, representatives of the Berkshire Health Authority attended the firm’s premises and removed certain files.  A fraud investigation apparently commenced.  On the same day, Mr Du Toit flew to South Africa on a pre-booked holiday.  It seems that the following day Mr Zietsman walked out saying that he did not intend to continue the practice.  Thereupon the employment of the staff, including the Applicant, ceased.  

4	On 7 June 1999, the Applicant presented her complaint to the Tribunal, naming Berkshire Orthodontics at 37 Crossway House as Respondent.  No notice of appearance was entered and on 1 October 1999, the complaint came before the Chairman sitting alone.  He ordered an amendment to the Originating Application, to name Mr Zietsman and Mr Du Toit, trading as Berkshire Orthodontics, as Respondents and then proceeded to hear the claim in the absence of those Respondents.  He upheld the complaints by a decision promulgated with summary reasons on 18 October 1999  (the original decision).  

4	On 28 October 1999, Mr Du Toit lodged a written application for review of the original decision.  That review application was heard by a full Tribunal, chaired by Mr Snelson on 21 January 2000.  

5	By a decision with extended reasons, (the review decision) dated 10 February 2000, the Tribunal dismissed the review application.  They found that following his return from South Africa on 12 April 1999, Mr Du Toit recovered certain files from the Crossway House premises, and transferred those to his own practice at Fleet in Hampshire.  He made no arrangements for mail to be fowarded to him from the Crossway House premises.  They found that if he was unaware of these proceedings, he had only himself to blame.  It was not a proper case, in their judgment, for review under rule 11(1)(b) of the Employment Tribunal Rules of Procedure.  

6	In support of this appeal against the review decision, Mr Coppel submits that the Tribunal failed properly to construe and apply the statutory rules as to the giving of notice; that their reasoning was inconsistent with those rules, and further that their refusal to allow a review contravenes Article 6 of the European Convention on Human Rights, a matter which this Appeal Tribunal ought to take into account today, and must take into account at any full hearing of this appeal which will take place after the Human Rights Act 1998 comes into effect on 2 October.  

7	We have paid particular attention to the Article 6 point.  The simple fact is that this claim was heard and determined against the Appellant in his absence, in circumstances where there is no finding by the Tribunal at the review hearing that he had actual notice of the proceedings.  Whether or not he is deemed to have notice of the proceedings under the provisions of section 7 of the Interpretation Act 1978, is one question which we think ought to be argued at a full hearing. 

8	Of more general importance is the question as to whether, if he is deemed to have notice under the domestic legislation, that state of affairs is in some ways incompatible with the right to a fair trial under Article 6.  

9	This is a preliminary hearing.  The question for us is whether the appeal raises any arguable point of law.  As we have endeavoured to identify above, we are satisfied that it does. Mr Coppel has indicated that he may wish to draft amended grounds of appeal to further develop the Article 6 point.  He has 14 days from today in which to lodge an amended draft Grounds of Appeal, marked for my attention, and I will consider whether or not permission to amend is to be granted.  

10	In these circumstances, the appeal will proceed to a full hearing.  For that purpose, we shall direct that it be listed for 3 - 4 hours, the parties to notify the Employment Appeal Tribunal, in the light of any amended Notice of Appeal, which of those two time estimates is the more accurate.  It will be given Category B.  There will be exchange of Skeleton Arguments between the parties not less than 14 days before the date fixed for the full appeal hearing, copies of those Skeleton Arguments to be lodged with the Employment Appeal Tribunal at the same time.  There are no further directions at this stage.