United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1216_95_3004

Appeal No. PA/1216/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30 April 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

(IN CHAMBERS)

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R J LAMPARD AND CO LTD          APPELLANTS

(1) GREENSTOCK & OTHERS

(2) E G HOARE (IN LIQUIDATION)

(3) BARGE WASTE MANAGEMENT LTD

(4) FERNMEAD LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR G KENNETH

Director

For the 1st Respondents MR OLLERHEAD

Representative

Citizens Advice Burea

18 College Street

Salisbury SP1 3AL

NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF 2ND, 3RD AND 4TH RESPONDENTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by R J Lampard & Co Ltd against the order of the Registrar of this Tribunal. She made an order on 17 November 1995 on R J Lampard's application for leave to enter a notice of appeal out of time. After considering representations by letter from R J Lampard and from the Respondents, she refused the application for extension.

R J Lampard appealed. Mr Kenneth, a Director of the Company who represented them in the Industrial Tribunal, argued the case for them today with the help of a written skeleton argument, explaining the basis on which the appeal would be argued if it is allowed to go forward and also dealing with the point that the appeal was out of time.

The appeal is opposed by Mr Ollerhead, who represented the Applicants in the Industrial Tribunal.

The decision which R J Lampard wish to appeal was a unanimous decision of the Industrial Tribunal held at Southampton on 13 July 1995. In the extended reasons for the decision, sent to the parties on 16 August 1995, the Tribunal explained their reasons for finding that:

"2. There was a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 1981 to the fourth respondent [R J Lampard]."

and why they concluded that R J Lampard had unfairly dismissed the first two Applicants, Mr Greenstock and Mr Waters.

Although those extended reasons were sent to the parties on 16 August, the notice of appeal by R J Lampard was not served on this Tribunal until 12 October. It is conceded by Mr Kenneth that the appeal was what he describes as technically out of time. He says that the reason why it was out of time was that there was an oversight. That is explained in more details in his letter of 14 November to the Registrar:

"... the principal reason for requesting the extension of time was that we had made a foolish error in interpreting the time available. It is not possible for us to honestly embellish this cause."

The error was in thinking that the time limit for appealing was two months from the extended reasons being sent out when, in fact, it is 42 days.

In addition to that explanation the letter of 14 November makes these points: that there are important points of law to be considered on the appeal; that the lapse of time between the closing date for the appeal and the receipt of the appeal was not substantial in relation to the dispute, and that the strong opposition of the other parties is some display of the fact that they fear the strength of R J Lampard's case.

At the hearing of the appeal from the Registrar's refusal this morning, Mr Kenneth has taken me through the written submissions which explain the basis for the appeal. The matter principally relied on is that the Tribunal, which decided this case against R J Lampard, were not able to take into account the criteria laid down by the European Court of Justice in the recent case of Rygaard v Stro Akustik A/S [1996] IRLR 51. Those criteria are relevant to determining whether there has been a transfer for the purposes of the TUPE Regulations. He submits that the Tribunal did not correctly identify that the Acquired Rights Directive is applicable only when the change in the person responsible for the operations of the undertaking is based on a contract. He says that the Tribunal did not correctly recognize from the evidence that the ancillary trade, in which Mr Greenstock and Mr Waters were operative, was not transferred at all. Finally, he would wish to refer on the appeal to new evidence to show that the second Respondents to the appeal (E G Hoare, which is in voluntary arrangement), still carry on that ancillary trade.

Those points are explained in more detail in the rest of the written argument.

The appeal is opposed. Mr Ollerhead for Mr Greenstock and Mr Waters submits that the appeal is out of time and there really is no valid ground for granting an extension. There is no excuse for being out of time. He pointed out the position of his clients. They still had not received any compensation, even though a direction was given at the end of the decision that the parties were invited to settle the matter and, if no settlement was reached, then the question of remedy should be listed for determination by the Tribunal.

The appeal is opposed by the other Respondents, E G Hoare. They are represented by solicitors in Southampton, (Paris, Smith and Randall) who wrote to this Tribunal on 11 March, explaining that they would not be attending the hearing today because E G Hoare is insolvent and it does not seem appropriate to incur further legal costs in attending the hearing. They set out in their letter their response to the points made by R J Lampard on the substance of the appeal. On the question of time they say:

"The Appellants should not be allowed to continue with their appeal as it was quite clearly out of time."

Those are the arguments. I explained to Mr Kenneth that all that I am dealing with today is the appeal against the Registrar's refusal to extend the time.

In deciding that I have a discretion, as Mr Kenneth rightly accepts. But the manner in which that discretion is exercised is circumscribed by well-settled rules of practice. The starting point is that Rule 3 of the Employment Appeal Tribunal Rules 1993 lays down in sub-rule (2) a clear time-limit for appealing. It says:

"The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which the extended written reasons for the decision or order of the industrial tribunal were sent to the appellant ..."

That is a generous time-limit. It is a clear one. It is notified to the parties to Industrial Tribunal proceedings when they are sent the extended reasons.

The practice of the Tribunal, as reflected in the reported decisions, is that the time will only be extended in exceptional cases. It will only be extended where there is a full explanation for the failure to comply with the time-limit and where this Tribunal takes the view that that explanation is a valid excuse for not complying with the time-limit.

In this case the only explanation put forward for not complying with the time-limit is that the time-limit had been misinterpreted. That is not a valid excuse. It is difficult to interpret 42 days differently than 42 days. If R J Lampard were not clear about what the time-limit was they could easily have found out. Mr Kenneth handled this case for R J Lampard at the Tribunal which made the decision now appealed. If there was any lack of information or lack of understanding about what the limits were on appealing, it could have been established by making some enquiries from the Industrial Tribunal or from this Tribunal.

I appreciate the point that it is only a few days out of time. I appreciate the point that Mr Kenneth may wish to use arguments on the appeal which were not available in the Industrial Tribunal, because the Rygaard had not then be decided. So his clients did not have the ability at the Tribunal hearing to use some passages in the decision of the European Court of Justice judgment which may be of assistance to them on the appeal. But, in my judgment, the fact that there is a point of law of some importance on the appeal does not significantly bear on the question of whether there is a valid excuse for not appealing in time. The position is that, if there were valid ground for appeal on a point of law, it was all the more important to conform to the time-limits. That has not been done.

This appeal should be dismissed on the ground that the explanation advanced for not complying with the time limits does not amount to a valid excuse.