United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1050_95_2711

Appeal No. EAT/1050/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27th November 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS E HART

MRS M E SUNDERLAND JP

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MS A SHISHMANIAN          APPELLANT

NATIONAL FREIGHT CORPORATION          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Miss Shishmanian against the order made by the Chairman of the Industrial Tribunal on 5th September 1995. He made an order that Miss Shishmanian's originating application be struck out under Rule 7(7) of the 1993 Industrial Tribunal Rules of Procedure by reason of her failure to remit the amount of £50.00. That was the amount of a deposit ordered to be paid to the Tribunal not later than 17th August 1995 pursuant to an order sent to the parties on 27th July 1995.

This is the preliminary hearing of that appeal to decide whether the appeal raises an arguable legal point. If there is no arguable legal point, then there is no purpose to be served in letting this matter go forward to a full hearing.

It is necessary to consider the background. On the 21st November 1994 Miss Astra Shishmanian presented to the Tribunal an application complaining that she had been discriminated against, victimised and unfairly dismissed. Her complaint was brought against the National Freight Corporation who were named as her employers.

In the originating application she also identified as the place where she worked or applied for work the Share Staff Recruitment Ltd of Shepherds Bush. The dates of her employment were 14th August to 22nd August 1994. She set out in reply to question 10 the details of the complaint of discrimination, victimisation and unfair dismissal.

The response to the complaint was a Notice of Appearance completed by Share Staff Recruitment, not by National Freight Corporation. In their Notice of Appearance dated February 1995, Share Staff Recruitment said that Miss Shishmanian was not dismissed by them nor was she victimised or discriminated against. In a covering letter dated 2nd March 1995 to the Industrial Tribunal, the director of Share Staff Recruitment said he could not understand how the case against them had come about and would suggest that it was vexatious and frivolous and should be considered at a separate preliminary hearing.

A preliminary hearing did take place on 20th July 1995 attended by Miss Shishmanian in person, by Mr Thornton of Human Resources Training Development, who represented the National Freight Corporation and Mr Downey who represented Share Staff Recruitment.

It appears that the reason for the presence of representatives of both the National Freight Corporation and Share Staff Recruitment Limited, was that there is a dispute or potential dispute between those two bodies as to which of them is Miss Shishmanian's employer and liable to her in respect of any alleged discrimination in her employment.

At the hearing the Chairman formed the view that the claims of sex discrimination and unfair dismissal had no reasonable prospects of success. Paragraph 10 of the Notice of Application contained no allegation of an incident involving sex discrimination. The dates of employment given, for August 1994, did not constitute a period of service sufficient to permit the applicant to complain of unfair dismissal. The requisite period is two years continuous service.

In those circumstances the Chairman ordered Miss Shishmanian to pay a deposit of £50.00 within 21 days beginning with the date on which the document containing the order was sent to the parties. That payment was a condition of being permitted to take part in the proceedings. That order was sent to the parties on 27th July 1995. Miss Shishmanian did not appeal against it. There were notes on the other side of the order which made it clear that, if a person against whom the order was made, did not remit the amount specified in the order before the date specified, the Tribunal might strike out the originating application. A note was also included to the effect, that if an order of this kind were made and the party persisted in participating in the proceedings, he might have an award of costs made against him and lose the deposit.

Miss Shishmanian did not appeal against that order. She did not comply with it. She did not pay the £50.00 within the 21 days which expired on 17th August 1995.

In those circumstances the Tribunal made the order notified on 5th September 1995, striking out the claim for want of compliance the payment of the deposit requirement.

In those circumstances it appears to us that, though Miss Shishmanian may have been under a misunderstanding about the position, there is no legal point in this appeal. The Tribunal Chairman was entitled to strike out the proceedings if the £50.00 deposit, which had been ordered to be paid by an unappealed order had not been complied with. There is no prospect of this appeal succeeding, because there is no error of law by the Tribunal Chairman.

From what Miss Shishmanian has told us about what happened between her, the Chairman of the Tribunal, and the representatives of the parties at the hearing on 20th July 1995, there may have been a misunderstanding by her about her right to appeal the order for the payment of £50.00. There is nothing we can do about that today in the absence of the respondents to the case. Miss Shishmanian may attempt to appeal against the order notified on 27th July 1995, the order to pay the £50.00. In order to appeal against that order, it would be necessary for Miss Shishmanian to apply to the Registrar of this Tribunal for an extension of time for appealing, because she is out of time for appealing against that order. An extension of time may be granted if the Tribunal is satisfied that there is a good excuse for not appealing within the time limit of 42 days from that order. A decision could only be made on an application to extend the time if the respondents were notified of the application and were given an opportunity to make their views known to the Registrar before she made a decision. There seems little doubt that National Freight Corporation and Share Staff Recruitment would oppose an extension. Whether the Registrar would grant an extension depends on whether the Registrar takes the view that Miss Shishmanian had a good excuse for not appealing earlier. It is for Miss Shishmanian to decide whether she applies for an extension of time. For the reasons already explained, there is nothing more that we can do on this appeal. It is dismissed.