United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] [1995] UKEAT 162_94_1805

Appeal No. PA/1162/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 18 May 1995

THE HONOURABLE MR JUSTICE MORISON

MR T C THOMAS CBE

MRS P TURNER OBE

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MARN BROTHERS (HOLDINGS) LTD          APPELLANTS

MR S GEESON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR S HEMLOCK

(Manager)

Marn Bros (Holdings) Ltd

French & Foxwell Limited

A217 Brighton Road

Burgh Heath

Tadworth

Surrey KT20 6BX

For the Respondent MR R BUTLER

(of Counsel)

Messrs Sherwood Wheatley

(Solicitors)

48 High Street

Kingston upon Thames

Surrey KT1 1HW


 


MR JUSTICE MORISON: On 10 June 1994 an Industrial Tribunal held, heard and determined in his favour a complaint by Mr S Geeson, the employee, against his former employers, Marn Brothers (Holdings) Ltd, whom we shall call "the employers". The employers did not attend that hearing.

The brief facts relevant to this matter are that the employee was employed by the employers from November 1989 to 23 January 1994. He was dismissed ostensibly on the grounds of redundancy. He presented to the Industrial Tribunal a complaint of unfair dismissal. In the grounds of complaint he said that there was no redundancy situation. This complaint was sent to the employers whose response was, in our experience, somewhat unusually intemperate. It came not in the form of an IT3 but by letter dated 14 March 1994 which the Industrial Tribunal quite correctly accepted as a formal notice of appearance. The terms of the letter make clear, first, that the Company disputed the suggestion that the employee's job still existed and, second, averred that the advertisement for a new job, to which the employee had made reference, was for a replacement for another employee who had, whereas the employee did not, knowledge of paint work. The letter, from a Mr Hemlock, the general manager, continued:

"I find this application a nauseating example of a waste of taxpayers money as well as the cost involved in my dealing with the matter. We are a company which has suffered severe losses during the recession and are struggling to keep over 30 people employed at the moment.

As stated my records are available for your perusal. Hopefully common sense will prevail and this will be the last I shall hear of this ridiculous claim."

Mr Hemlock was to be disappointed. The Industrial Tribunal fixed a date for the hearing of this matter and there is no suggestion that the employers were unaware of it. Indeed, this morning quite properly Mr Hemlock accepted that they had received it.

On 6 October 1993, immediately before the hearing before the Industrial Tribunal, the employers wrote indicating that due to illness they would be unable to attend the hearing but subsequently sent or enclosed with that letter, it matters not, documents which they invited the Industrial Tribunal to consider in their absence. They did not ask for an adjournment or send a representative to the Industrial Tribunal to ask for an adjournment because of the illness of Mr Hemlock and, in our judgment, in those circumstances, the Industrial Tribunal was quite entitled to proceed in the employers' absence. It is clear from the rules of procedure of an Industrial Tribunal that there is no obligation on any party or any person to appear at a hearing and can ask the Industrial Tribunal to consider their case on paper.

Having heard the employee's evidence and having considered the documents which had been supplied to them, the Industrial Tribunal found that the dismissal was unfair and awarded him compensation in the sum of £4,190.49.

On the evidence which they heard, they rejected the statements made by the employers in letters sent to the Industrial Tribunal that they had been advertising to replace a different employee. They observed that the advertisement appeared before the date when that other employee left the Company for personal reasons. Having reviewed the evidence they did not accept that at the date of the dismissal there was a redundancy situation and on substantive and procedural grounds they found the dismissal to have been unfair. The compensation they awarded was based on their assessment that the employee would be out of work for 26 weeks, the employee being unemployed as at the date of the hearing. That decision was signed by the Secretary of the Tribunal and entered in the Register on 28 September 1994. Having received the decision, on 6 October the employers wrote to the Industrial Tribunal and asked for the relevant forms to be sent to them in connection with a prospective appeal and they referred to the possibility of a rehearing of their case and they indicated that if such took place they would be represented by lawyers.

The reply from the Industrial Tribunal was dated 4 November 1994 and the employers were told specifically that if they wished to appeal they had 42 days in which to do so. Apparently, Mr Hemlock had been on holiday when the reply was received and the notice of appeal was lodged with this Tribunal one day out of time. The notice was accompanied by a letter asking the Employment Appeal Tribunal to extend the time for appealing and the Registrar refused that application. Mr Hemlock this morning said that the Employment Appeal Tribunal should understand the considerable pressures that are upon the Company and upon himself in particular as the general manager, having regard to the economic circumstances of the country and, particularly, of the Company. He has emphasised to us that the business is not profitable, it is currently just breaking even but was, at the material time, sustaining a loss and, overall, a heavy loss at the garage where the employee worked. What we have to say hereafter does not indicate that we do not understand the pressures to which he was subject nor does it conceal the fact that we have some sympathy with companies who are in a position similar to his own.

The Registrar's refusal of their application for an extension of time, provoked Mr Hemlock to write and say that he wanted another Court or Judge to deal with his appeal, hence the hearing before us. He said:

"As outlined in our previous letter ... I consider the payment awarded ... grossly unfair and I am amazed that this case cannot be taken to appeal due to my illness which subsequently led to me being unable to defend myself at the original hearing."

The ground of appeal contained in the notice of appeal are that he was unable to attend the original hearing due to illness and the interests of justice required a new hearing as he had further evidence which proved that the employee was redundant.

There are, therefore, two matters with which we must deal. First, should we allow the appeal to proceed despite the fact that it is one day out of time. Second, if yes, does this appeal raise an arguable point of law fit to go before a full Tribunal? If the answer to questions 1 or 2 is no, then the matter will be concluded against the employers. We shall consider those two questions in the reverse order.

It is in the public interest that there should be finality to judicial proceedings, including those before Industrial Tribunals, and that means that provided the parties have had a fair opportunity to present their case, there should be one and only one substantive hearing before such a Tribunal. There are cases where mistakes are made and through some explicable reason one party does not appear when he intended to do so. In such a case, the Industrial Tribunal is entitled to proceed in the other party's absence, but the Rules enable that decision to be reviewed if the non-attending party can show a good reason for his non-attendance. In this case, the employers had been notified of the date for hearing. As we understand the letter of 6 October, despite Mr Hemlock's illness, which was referred to in that letter, the Company were inviting the Tribunal to consider the matter in their absence and to consider the documents which were either included with it or subsequently sent to the Industrial Tribunal. In those circumstances, we are quite satisfied that the Industrial Tribunal were entitled to proceed in the Company's absence. In any event, it seems to us that the Company ought to have considered following the President's helpful advice contained in the Employment Appeal Tribunal's letter to them of 18 December, suggesting that it would be more appropriate for them to seek the Industrial Tribunal's discretion to review their decision.

The answer to question two is no. There is no arguable point of law on the decision as it stands. It can only be challenged if it can be shown that the Industrial Tribunal ought not to have proceeded to hear the matter in the Company's absence and for the reasons we have given we do not think that the Tribunal can be criticised for doing so.

As to question one, we do not consider that this is a case where we can extend the time-limit for appealing. Every day the Industrial Tribunals receive applications from men and women who do not have the benefit of legal knowledge. Every day we have appeals filed here by lay people. They take the trouble to find out for themselves, if necessary by asking one of the many organizations who can assist in such matters, what the time-limits are. They have to comply with rules of which they may well have been unaware at the time at when they thought about making their complaint. There are Tribunal offices, there is literature published by the Department of Employment, there are advice centres and solicitors. Mr Hemlock appears to take the view that, unlike everyone else, he is entitled to expect the Industrial Tribunal or the Employment Appeal Tribunal to tell him of his obligations.

The Respondent Company apparently employs some 30 people. I am sure that it may find business tough at the present time but we cannot accept that ignorance of the time-limit gives him an excuse for not filing the notice of appeal in time, nor does pressure of work.

As the President pointed out in United Arab Emirates v Abdelghafar [1995] IRLR 243:

"Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. For example, the following explanations have been rejected ... as excuses for delay [which has occurred, for example]: ignorance of the time limit;"

Whilst each case must be decided on its own facts, it is to be noted that the employers themselves said on 6 October that in future they intended to appear through a legal representative. The Company had access to legal advice and it is entirely their own responsibility if they do not avail themselves of it. Normally, when considering a time-limit point, we would not refer to the merits of the case but where, as here, it is clear that any appeal would be bound to fail because the Industrial Tribunal were simply exercising a discretion to proceed in the absence of a party, we can take that into account in assessing the hardship to the employers if we do not extend time. They will not be prejudiced by our refusal to extend time because the appeal which they wish to present would be doomed to fail in any event. Therefore, as we consider that the Registrar's decision in this case was correct, we do not allow the appeal against it.

I think that my colleagues and I would like to add a note of regret that Mr Hemlock should feel such contempt for the complaint made against his Company by a former employee who was simply exercising his statutory right to present it. He may wish to reflect on the fact that such complaints are presented so that they may be determined by a judicial body and they simply cannot be blown away by abusive rhetoric. Accordingly, we dismiss the appeal against the Registrar's decision and dismiss the appeal.