United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 233_95_1212

Appeal No. EAT/233/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 December 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

DR D GRIEVES CBE

MR W MORRIS

---

MR M A NAIM           APPELLANT

KALA LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr Naim. Mr Naim appeared in person, but has had the benefit of advice from a firm of Solicitors, under the Green Form scheme. His Solicitors have helpfully provided for the hearing a skeleton argument outlining the legal points which Mr Naim wishes to make on the appeal.

The background to the case is that Mr Naim made an application to the Industrial Tribunal in April 1993 claiming unfair dismissal and redundancy against Kala Ltd, his former employers. The claim was resisted by Kala. Their case was that he had not been dismissed. He was not dismissed by reason of any matter other than reaching the normal retirement age of 60. They denied there was any issue of redundancy.

The case came on for hearing on 7 July 1994 at Whittington House. The Tribunal dismissed the case for want of prosecution. What are described as full reasons are, in fact, three sentences saying that Kala Ltd attended with Counsel for the hearing, but Mr Naim failed to attend at the time fixed for the hearing and still was not in attendance one hour after the time fixed. His Counsel attended from the Free Representation Unit, but he was unable to explain the non-attendance of Mr Naim.

"3 After hearing the Applicant, Counsel in response to an application by the Respondent's Counsel for the case to be dismissed the Tribunal concluded that the complaint should be dismissed for want of prosecution."

The notice of appeal is against that decision notified to the parties on 19 July 1994. The notice of appeal is also against an unsuccessful application for review to the Industrial Tribunal. That was heard on 21 December by the Tribunal constituted as at the original hearing. Their decision was that the application for a review of the decision of July had not been made within the time specified in the Industrial Tribunal rules, rule 11(4); they refused the application to extend time and dismissed the application as it had been made out of time. The full reasons were notified to the parties on 11 January 1995.

Is there a legal error in the decisions? If there is a point of law that is reasonably arguable, we would direct this appeal to go on to a full hearing. If there is no arguable point of law, there is no point in the matter going on to a full hearing, because this Tribunal only has jurisdiction to hear appeals on questions of law.

The arguments of Mr Naim, are put in this way. We have discussed the detail of some of the points with Mr Naim. The relevant provision concerns extensions of time. The Tribunal may extend time in the exercise of its discretion.

It is accepted that, under the rules, an application for review must be made within the prescribed period. The relevant time for applying for a review is 14 days from the date on which the decision is notified.

In this case the argument is put in two parts. The first part of the argument relates to the appeal against the decision of 7 July. It is argued that the dismissal of the case for want of prosecution was perverse, because Mr Naim was not notified of the venue of the hearing. He arrived at the wrong venue, that is at Croydon instead of Whittington House. When he arrived the Tribunal in Croydon telephoned the Tribunal in Whittington House where the case was listed. Nevertheless, the case was called on without waiting for or hearing Mr Naim.

It was conceded in the Tribunal's findings on the review hearing that there was a good reason for Mr Naim's absence from Whittington House. Indeed, the Tribunal concluded, at the review hearing, that they would have revoked the decision to dismiss for want of prosecution and ordered a re-hearing if his application for review had been made within time.

There are no grounds on which we can allow the appeal against the decision to dismiss for want of prosecution. There is no error of law in the Tribunal's exercise of discretion. If somebody does not turn up at the time and place required and there is no apparent reason at that time why they are not there, it is not erroneous for the Tribunal to decide to dismiss the case because no one has attended to pursue it.

The case today turns on whether there is an error of law in the review decision. It was right to apply for a review rather than an appeal, because one of the specific grounds for a review under rule 11(1)(c) of the 1993 Rules of Procedure, is that the decision in question was made in the absence of a party.

Unfortunately, the application for a review was not made within the time laid down by the rules. The review application from Mr Naim was not received in the Industrial Tribunal until 10 August. It was a handwritten letter dated 9 August from Mr Naim. He asked to appeal against the decision dismissing his application. The Tribunal treated that letter, not as an appeal, but as a review and the parties were notified accordingly.

The argument on the preliminary hearing of the appeal is that the explanation for the application being out of time was that Mr Naim assumed that the original decision had been sent to his representative, the Free Representation Unit, as previous documents had also been sent to them. The Tribunal had not considered this in its reasoning. The delay between the expiration of the period for making the application, and the time when Mr Naim actually made it, was only a short period. Kala would not have been prejudiced by an extension of time. The result of the Tribunal's refusal to extend the time for the review is that he has never had the opportunity to have his case considered on the merits.

For all those reasons, it is submitted that the decision of the Tribunal to refuse to extend the time for a review application was so unreasonable that no reasonable Tribunal could have refused it. They failed to appreciate the standards of fair industrial practice.

The submission is that this Tribunal send the case back to Croydon or to another Industrial Tribunal for a hearing to be listed on the merits.

We have considered those arguments. We can see how Mr Naim and observers of the procedure adopted in this case might feel that a harsh line was taken. We have some sympathy with that position. The fact is, however, that the rules do lay down clear time limits.

The system can only operate fairly for all parties, if the time limits are observed. This means that extensions of time, which are granted in the exercise of a discretion, are the exception rather than the rule. You do not get an extension of time just by asking for it. The Tribunal has to be satisfied that there is a good excuse for not observing the time set and that all the circumstances justify the exceptional step of allowing someone to go on with a case, even though they have not complied with the rules which apply to everybody.

In this case the Tribunal's findings do not reveal any error of law. They say that Mr Naim received a complete copy of the decision and the reasons. It was not a case simply of the decision and the reasons going to the Free Representation Unit, so that he never knew of it. They said that, on that basis, his application for review had not been made within the relevant period from the date when the decision was sent, that his application for extension of time was without merit and was therefore refused.

In those circumstances, the Tribunal acted within their discretion. It cannot be said that they have ignored relevant legal principles or ignored relevant factors or have been influenced by irrelevant factors. That is the view they formed. Another Tribunal might have taken a more relaxed view, but that is not the point.

The question is: was there an error of law in this decision? In our view, there is no arguable error of law. The appeal will be dismissed at this stage.