United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 207_95_2610

Appeal No. PA/207/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 October 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

(AS IN CHAMBERS)

---

J M GREEN T/A GREEN'S JOINERS          APPELLANTS

MR J BROWN          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants NO APPEARANCE BY OR ON BEHALF OF THE           APPELLANTS

For the Respondent RESPONDENT IN PERSON


 


MR JUSTICE MUMMERY (P): This is an appeal by Mr J M Green, trading as Green's Joiners. The appeal is against the Order made by the Registrar at the Employment Appeal Tribunal on 21 April 1995. The Registrar, after considering written submissions in correspondence, refused the application made by Mr Green for an extension of time in which to serve an appeal.

On 2 May 1995, Mr Green wrote to the Employment Appeal Tribunal saying that he wished to appeal from the Registrar's Order. On 4 May the Tribunal informed Mr Green that the appeal would be set down for a hearing before a judge and the clerk of the lists would contact the parties to fix a suitable date. On 13 July a letter was sent out to the parties notifying them that this appeal would be heard at 10.30 am on 26 October.

At the hearing this morning Mr Brown, respondent to the appeal, has attended in person. Mr Brown was the Applicant in the proceedings before the Industrial Tribunal. He succeeded in his claim against Mr Green that he had been unfairly dismissed and was awarded compensation. Mr Brown informed me that he had had no contact with Mr Green since last year. So far as he knows, Mr Green's accountants, who have been concerned in this matter, have heard nothing from Mr Green. Mr Green has not attended the hearing. He has not been represented. According to the Court file, he did not respond to the letter notifying him of the date of hearing saying positively whether or not he would attend.

In those circumstances the appeal has not been pursued. It is liable to be dismissed for that reason alone. I should add that, in any case, I have read the papers in the case and, in my view, it is right to refuse an extension of time.

The background to the case is that Mr Brown's claim for unfair dismissal was presented in August 1994. Mr Green sent in a notice of appearance on 22 September 1994 but was out of time. On 11 November 1994 the Chairman of the Industrial Tribunal at Leeds, Mr Prophet, refused to grant Mr Green an extension of time to enter a notice of appearance, with the result that Mr Green was not entitled to take any further part in the proceedings. The reasons for that decision were notified to the parties on 11 November 1994. In that decision the Chairman explained how the originating application had been sent to Mr Green on 10 August 1994, how he had been sent a reminder on 2 September 1994, that the period under the rules had expired and that if he wished to take part in the proceedings he should complete and return the notice of appearance. That did not happen. Instead a purported notice of appearance appeared in the Industrial Tribunal office on 22 September 1994, with no explanation for delay. Explanations were requested. The explanation given by Mr Green was that he had been on holiday and he had informed the office on his return that he would be submitting a notice of appearance as soon as possible.

The Chairman decided that the notice of appearance submitted late was not the subject of any adequate written explanation. He was given an opportunity to apply in person for the notice of appearance to be validated. An appointment to attend for a hearing was made but he had not arrived by the time fixed for the hearing.

In those circumstances no further explanation was given and an extension was not granted.

On 22 December 1994, the hearing of the substantive claim for unfair dismissal took place before the Industrial Tribunal and, for reasons notified to the parties on 9 January 1995, Mr Brown succeeded in his application and was awarded compensation of £3,135.

Mr Green appealed against the decision of the Industrial Tribunal by notice of appeal which was received in this Tribunal on 21 February 1995. It was accompanied by a covering letter which did not contain an adequate explanation of the reason for the appeal being outside the 42 days required by the Employment Appeal Tribunal Rules for serving a notice of appeal.

There was a further letter to the Tribunal from Mr Green, received on 5 March 1995. All he says in relation to the time-limit for appealing having passed is that the reason for leaving the appeal until the last day was the fact that he was trying to negotiate an out-of-tribunal settlement with Mr Brown, which was unsuccessful. That is not a satisfactory reason for being late with a notice of appeal. If negotiations are going on, the proper course is to serve a notice of appeal or to ask for an extension of time for appealing.

In a later letter of 5 April, Mr Green submitted to the Tribunal that his appeal was served within the deadline and he would swear an affidavit to that effect. All that he was asking was that he be allowed to defend the case. He said that was the reason why the notice of appeal was submitted at the last minute. He added:

"As I understood the matter we were to settle out of court but this has proved not to be the case."

That is the information available to the Tribunal about the reason for the lateness of the notice of appeal. In my judgment, the Registrar was right to reject the application for an extension. Nothing said in Mr Green's letters amounts to a good excuse for failing to comply with the time-limit for appealing.

In those circumstances, the appeal against the Registrar's Order is dismissed.