Appeal No. UKEAT/0171/08/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 November 2008

Before
HIS HONOUR JUDGE BIRTLES 
(SITTING ALONE)

BEDHAMPTON DENTAL SURGERY	APPELLANT

MISS M HENDERSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	No appearance or representation by or on behalf of the Appellant	
For the Respondent	MR G GOODLAD
(of Counsel)
Instructed by:
Messrs Verisona Solicitors
64 West Street
Havant
Hampshire, PO9 1PA	

SUMMARY
PRACTICE AND PROCEDURE:  Review  / Perversity
Appeal against a refusal of a review.  The Appellant did not appear at the Full Hearing and produced no medical evidence in support of his application by email for an adjournment.  Neither did he appear at the Preliminary Hearing.  His appeal was on the ground of perversity.  No evidence was submitted at any time to support his case that the refusal of a review was perverse.  Appeal dismissed.

HIS HONOUR JUDGE BIRTLES

Introduction
1.	This is the full hearing of an appeal by Bedhampton Dental Surgery.  The principal of that practice is Mr Jan Veende.  He has made applications for an adjournment of the hearing of the appeal today which has been listed for some time.

2.	On 19 October 2008 he sent an email to the appropriate officer at the Employment Appeal Tribunal which said this:
“Dear Sirs
I’m sorry but I cannot attend my EAT hearing because I am v poorly and in a hospital (Cape Town) for long term treatment.  For at least 10-18 months.”

3.	The application for an adjournment was put in front of the Registrar and refused by her on 26 October.  

4.	Mr Veende made a further application for an adjournment of today’s hearing by an email dated 3 November 2008, in other words, yesterday.  That says this:

“Dear Sirs
 I am unable to attend in London.  I am in a hospital in Cape Town.  For the next 12 to 18 months at least.  
Please do postpone my hearing for 20 months.”

5.	That email was put in front of me yesterday morning and I refused an adjournment on the basis that Mr Veende had failed to supply any medical evidence in support of his assertion that he was ill and in a hospital in Cape Town.  I note that he did not attend the original Employment Tribunal hearing and he did not attend the preliminary hearing before HHJ Burke QC on 17 June 2008.

6.	At my request, my decision to refuse an adjournment was emailed back to Mr Veende late yesterday morning.  He has not sent any further email or corresponded or contacted the Employment Appeal Tribunal in any way.  I therefore propose to deal with this appeal on the merits.  He has, of course, had the opportunity to instruct solicitors and/or counsel or, indeed, any other person to attend on his behalf and make representations but he has not done so.

The material facts
7.	It is helpful to take the material facts from the judgment of the preliminary hearing.  That was heard on 17 June 2008 by HHJ Burke QC.  The relevant part of his judgment is at paragraphs 2 - 9.  It says this:

“2.  The claim form, dated 23 March 2007, sets out a claim by the employee, Ms Henderson, that she had been constructively unfairly dismissed by Mr Veende by reducing her days of work without consultation and discussion.  In his response, dated 22 April 2007, Mr Veende said that Ms Henderson had not been dismissed but simply left to get a better job, and that she owed him monies in relation to holidays to which she was not entitled, college fees, which he had paid on the basis that she was going to stay in employment and otherwise.

3.  On 23 June the Tribunal sent out a notice of the hearing of the dispute between the parties on 28 August 2007, which was the Tuesday after the bank holiday Monday.  Mr Veende did not attend the hearing, was not represented and offered no explanation of his absence to the Tribunal.  Not surprisingly the Tribunal proceeded in his absence and found that he had unfairly dismissed Ms Henderson and also awarded compensation for unpaid college fees, for unpaid sick pay and uplifts under section 31 of the Employment Act 2002 and two weeks’ pay for failure to give written particulars of terms and conditions of employment.  The total amount awarded was just under £2,000; but in addition to that the Tribunal ordered Mr Veende to pay costs amounting to just over a further £2,000, leaving him with a total bill of just over £4,000.

4.  There can be no doubt that the Tribunal were entitled to proceed as they did on 28 August and to make the findings which they made, which were based on the evidence given to them by Ms Henderson.

5.  Nothing then happened until Mr Veende received a letter from Ms Henderson’s solicitors requiring payment by him of the amount ordered by the Tribunal.  At that point he wrote to the Tribunal purporting to appeal.  He said that he appealed against the decision because it was made without his presence and representation and had not taken into account his ‘cancellation’.

6.  That email was treated as an application for a review; and that application for a review was rejected on 17 October, but not before Mr Veende had, on 23 September 2007, sent to the Tribunal an email with an attachment.  The attachment is undated; inquiries of the Tribunal have confirmed that it is an attachment to the email of 23 September.  In that attachment Mr Veende said that he had been stuck abroad at the airport and that he had informed the Tribunal by email and telephone message of his situation and asked, ‘for a postponed hearing’, i.e. asked that the hearing be adjourned.

7.  His appeal, which must be an appeal against the refusal of the review (for it was too late to be an appeal against the original decision, and in any event the original decision seems to me, at least at this stage, to be unexceptionable) at first failed at the sift stage, but was permitted to go forward to this preliminary hearing by Underhill J.  It is clear that what Mr Veende is, at least now, saying is that he was due to fly back to this country on 27 August in time for the hearing on 28 August, but that his plane was cancelled so that his return from Finland, where he had been, was delayed until 28 August,;  thus he could not get to the Tribunal in time; and he left messages, which were not heeded.

8.  Had the information before the Tribunal in support of the review, been limited to the email in which Mr Veende says only that the Tribunal had not taken into account his “cancellation”, there could have been no possible ground for the granting of a review; and the refusal of the review could not possibly be criticised.  However, having ascertained that the attachment to the email of 23 September was before the Tribunal when it came to consider whether a review should be granted or not, it can been seen, arguably at least, that the information before the Tribunal as to why Mr Veende had not attended on 28 August was rather broader and specifically involved his assertion that he was stuck abroad, in Finland, at the airport through no fault of his.

9.  It seems to me that, in those circumstances, it is arguable, and I say no more than that, that the Tribunal may have erred in refusing at least to allow the review application to succeed to the degree that there should have been a hearing of that application.”

8.	I note that Mr Veende did not appear at the preliminary hearing and there was nothing on the Employment Appeal Tribunal file that indicates why he did not so attend.  The decision of Judge Burke QC was made in the absence of both parties; there of course being no requirement and indeed a prohibition in the absence of an express order for the Respondent to attend to make representations at a preliminary hearing.

9.	As Judge Burke QC notes, Mr Veende did not appeal against the judgment of the Employment Tribunal dated 28 August 2007.  He did apply for a review.  That was refused

The reasons for the refusal of the review are set out at page 123 of the appeal bundle.  The letter from the officer of the Employment Tribunal Service says this:

“I acknowledge receipt of your application for a review.  
Your application has been considered by a Chairman Mr SJW Scott, who has rejected it for the following reasons: The application for review is refused because it has been made out of time and in any event no grounds for the decision to be reviewed under Rule 34(3) have been shown.”

The Notice of Appeal
10.	There was an original Notice of Appeal: appeal bundle pages 125 to 127.  It was superseded by a fresh Notice of Appeal: appeal bundle page 145.  I should say it is dated 17 February 2008, received at EAT on 22 April 2008.  That says this:
“Dear Sirs! 
Many thanks for your reply.  
I am glad that somebody finally did ask those questions.
1. First I do appeal against the Southampton ET to ignore my cancellation.
a) I was given Notice of hearing 23-06-2007 
And I was well prepared for the hearing.  I did block the whole day in my surgery diary.  I had no reasons or plans to ignore the hearing.
b) My Monday (27-08-07) afternoons flight was cancelled (in Helsinki).  Next available fight was Tuesday (28-08-07) morning.
c)  d) I did cancel my hearing by e-mail and by phone 27-08-07 afternoon (was a Bank holiday in UK) and did the same by phone (leaving a message on the answering machine again) Tuesday (28-08-07) morning.  Because of the 3 hour time difference I could not wait until the reception opens.  I had to onboard already.
(e) I did wait patiently for the next hearing-date.  Knowing how busy they are.  
Only after I had received a bill - letter from the claimant solicitor I did realize that the hearing had taken place without me and that something had gone wrong.  And then I called the Southampton ET straight away.
Secondly I would like to appeal against the decisions which was done without my presence and probably influenced from deliberate misrepresentation by claimants layers [sic ‘lawyers’].
1) I had no time to look at the claimants papers to be presented at the ET hearing.  Papers was posted 23-08-07 and delivered to us Tuesday (28-08-07) pm.  We have no delivery on Saturdays and Monday was a bank holiday.
2) We had no unsettled salary to Mr [Miss] Henderson.  She had her last salary dec 2006 and did not work january 2007.  She only had 3 weeks unauthorised leave.  And then she resigned to take an offered private surgery (much higher salary) job.
3) Her contract (a standard NHS contract) states the course fees will be paid if she works min 2 years after the completion of the course.
4) Her hours were reduced (as everybody else) for a temporary period.
5) We even offered her not to go to the court (and forget it) to have over paid holidays refunded because she used all her holidays but left us before the end of the year.  
I’m not claiming that I am completely right or wrong.  I just ask for a fair hearing.  And how difficult could it be for Southampton ET to admit that some of secretaries did miss or delete my message by mistake! 
Without not even giving me (as a struggling NHS employer already) a chance for a fair hearing, you will send out a strong message out there: drain and abuse NHS as much as possible -- then leave to private medicine-dentistry --- and you can even sue your employer just to get more money!”

11.	As Judge Burke QC indicated, any appeal against the original decision of the Employment Tribunal on the merits was long out of time, and this appeal this morning concerns only an appeal against the refusal of the Employment Judge, Mr Scott, to refuse a review of that decision on the basis that Mr Veende asserts that he was stuck in Helsinki and unable to return to the United Kingdom in time for the Employment Tribunal hearing.

12.	I note that that the amended Notice, or fresh Notice, of Appeal followed a direction by the President, Mr Justice Elias, which was notified to Mr Veende by letter dated 11 February 2008.  That was as part of the sift process.  The relevant part of what the President said is this, appeal bundle page 143 -144:

“On the material provided so far, there is no ground of appeal identified.  The appellant simply submits that he ‘cancelled’ the appeal.  It is not for him to cancel anything.  
There is no information about the circumstances in which he was told of the date, or why he did not attend.  
If a fresh Notice of Appeal is to be submitted, then it needs to include a formal affidavit identifying:
(a) when he was given Notice of the hearing,
(b) why he did not attend,
(c) when he realised he was unable to attend,
(d) what steps he took to inform the Tribunal that he was unable to attend, and
(e) what steps he took subsequently to discover whether the hearing had gone ahead or not. ”

13.	No such affidavit has ever been submitted to the Employment Appeal Tribunal by Mr Veende.  All that was sent in is the fresh Notice of Appeal, which I have read: appeal bundle page 145.

14.	That Appeal Notice was considered by Mr Justice Underhill who gave permission to Mr Veende to proceed to the preliminary hearing, which was duly heard by Judge Burke QC.  The letter sent by the Employment Appeal Tribunal to Mr Veende on receipt of his fresh Notice of Appeal is instructive.  It is dated 22 April 2008 and appears at appeal bundle page 153.  It says this:
“I refer to the above matter, the EAT Order dated 21 April 2008 and the Appellant’s fresh Notice of Appeal dated 17 February 2008.  
The Honourable Mr Justice Underhill has directed that I write asking: 
(a) for a copy of all correspondence between the Employment Tribunal and the Appellant between 31 August 2007 and 17 October 2007 (to include the Appellant’s application for a review);
(b) whether there is any evidence beyond the endorsement on the Employment Tribunal Judgment that it was indeed sent to the Appellant on 31 August 2007 (e.g. a covering letter);
(c) to what address the Judgment was sent; and
(d) whether the Employment Tribunal are in a position to confirm whether or not the Appellant left the answerphone messages and sent the e-mail which in his correspondence he said he did.”

That letter was addressed to the Southampton Employment Tribunal.

15.	They replied in a letter dated 16 May 2008, received on 18 May 2008: appeal bundle page 158.  It says this:
“I refer to your letter of 22 April 2008 and reply as follows:
a)	Copy of correspondence attached.
b)	There is no further evidence other than the ET endorsement that the Judgment was indeed sent to the Respondent.
c)	The address to which the Judgment was sent was [and there is then given the Bedhampton Dental Surgery address and that  the letter was marked for the attention of Mr J Veende.
(d)	We have no evidence of the voice mail or the email that is supposed to have been received.  If indeed there was a voice mail, our office manager would have heard the message as she checks the answer phone every day.
If I can be of any further assistance please contact me at the above number.”

Evidence before the Employment Appeal Tribunal in support of the appeal
16.	At paragraph (11) of his judgment of 17 June 2008 Judge Burke QC says this:
“11.  For these reasons it appears to me there is an arguable prospect of success for this appeal and it should go through a full hearing.  It might be best if Mr Veende decided if he wishes to attend such a hearing - and he has not attended today’s hearing - to confirm his assertions by production of his own copies of the emails he says he sent to the Tribunal, of any mobile phone bills which verify his assertion that he rang the Tribunal: and of some evidence confirming that he was booked on a flight on 27 August, which was cancelled.  These are matters for him.  It may be that such material, having not been put before the Tribunal, may not be regarded as relevant.”

17.	With respect to Judge Burke QC, it is clear that the President felt that such evidence was relevant which was why he made the direction in refusing permission to Mr Veende to appeal on his first Notice of Appeal.

18.	The evidential position today is therefore as follows.

19.	First, it is quite clear from the correspondence I have cited and in particular the letter from the Southampton Employment Tribunal: appeal bundle page 158, that the Employment Tribunal have no physical record of either the alleged telephone message which Mr Veende says he left on the Southampton Employment Tribunal Service voice mail or of the email which Mr Veende alleges he sent to the Employment Tribunal.

20.	Second, no such material was put before the Employment Tribunal itself.  That is the hearing on 28 August: see paragraph (1) of the Employment Tribunal decision: appeal bundle page 113.

21.	Third, despite the express direction or request by the President to which I have referred, Mr Veende has supplied this Tribunal with no evidence whatsoever to confirm his assertions that on 27 and 28 August 2008 he first emailed and then telephoned the Southampton Employment Tribunal.  Neither has he produced any evidence of tickets or ticket showing that he was indeed in Helsinki on 27 August 2008 and/or that his flight to the United Kingdom was cancelled.  There is simply no evidence now which takes the matter any further than it was before the Employment Judge, Mr Scott, when he refused a review.

Conclusion
22.	The Employment Judge’s refusal on the grounds that the application for review was out of time was not wrong in law or perverse and was supported by evidence.

(1)	The original judgment is endorsed as having been sent to the parties on 31 August 2007, more than 14 days before the application of 23 September 2007.
(2)	The address to which it had been sent was the address on the record for the Appellant and the same address as that shown on correspondence received from him, see Employment Tribunal response to the EAT dated 16 May 2008: appeal bundle page 158.
(3)	The Appellant had not sought an extension of time in which to apply for a review whether on the grounds of non-receipt of the judgment or any other grounds.
(4)	The Appellant did not give a reason for his delay in applying for a review.
(5)	The Appellant did not assert that he had not received the judgment.
(6)	The terms of the Appellant’s application suggest that he had received the judgment.  He refers to the Employment Tribunal’s description of himself as “arrogant”: appeal bundle page 118.

23.	I turn to the substantive ground for the application for review.  In my judgment, the Employment Judge’s refusal on the grounds that the application for review showed no grounds for that decision to be reviewed under Rule 34(3) was not wrong in law or perverse and was supported by evidence.

24.	My reasons are as follows:

(1) Whilst it is correct that the judgment was made in the absence of the Appellant, an application for review on that ground should also set out the reasons for contending that the decision was wrong: see P J Drakard & Sons Ltd v Wilton [1977] ICR 642.
(2) The Appellant’s application gave no such reasons: it merely deals with the reason for his non-attendance, his claimed attempts to notify the Tribunal and extraneous matters.
(3) Even then, the Appellant did not supply any evidence in support of his reasons why he did not attend the hearing or his claimed attempts to notify the Employment Tribunal.
(4) Such evidence could easily have included copies of his flight tickets and the email he claimed to have sent to the Employment Tribunal, if not copies of his telephone bills confirming his attempts to contact the Tribunal offices.
(5) The Tribunal itself had no record of the Appellant’s claimed email or telephone messages: appeal bundle page 158.
(6) It is notable that to date the Appellant has failed to produce any such evidence, notwithstanding EAT orders of 11 February 2008 (EAT bundle page 143) and 21 April 2008 (EAT bundle page 151) and the judgment of HHJ Burke QC dated 17 June 2008 (paragraph (11) EAT bundle page 172).

25.	For these reasons the appeal is dismissed.

Costs
26.	In effect, beyond lodging his first and second Notices of Appeal, this Appellant has played no part in progressing his appeal.  He failed to attend at the preliminary hearing and he has failed to attend today.  He has failed to support his application for an adjournment of today’s hearing by producing any medical evidence making, again, a bare assertion that he is in hospital in Cape Town and will be so for a period of up to 20 months.  In my judgment the Appellant has behaved totally unreasonably and conducted this appeal in a vexatious manner.  I therefore propose to exercise my discretion to make an order for costs against him in favour of the Respondent.  I have been presented with a detailed Schedule of Costs.  It is a reasonable and proportionate bill of costs.  I therefore, award the Respondent the sum of £3,870.41.