United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P FORTUNE (of Counsel) Messrs Ray Borley & Dunkley Solicitors 79 High Street Stony Stratford Milton Keynes Buckinghamshire MK11 1AU


 


JUDGE PETER CLARK: By an Originating Application presented on 10 June 1996 the Applicant before the Bedford Industrial Tribunal, Mr Scholte, brought a complaint of unfair dismissal against his former employer, J.S. Cowley (Haulage) Ltd, then in liquidation, the first Respondents, and Mr J.S. Cowley, the second Respondent.

Background

Prior to the liquidation, J.S. Cowley (Haulage) Ltd (the company) carried on a general haulage business. The second Respondent was its Managing Director. The Applicant was employed by the company as a driver and assistant to the Managing Director from April 1993 until his dismissal on, as the Industrial Tribunal found, 1 May 1996.

It appears, from an affidavit sworn in these proceedings by the second Respondent on 13 February 1997 (the affidavit) that the company ran into financial difficulties.

On 22 March 1996 the second Respondent wrote to the Applicant warning him of his impending redundancy as a result of those difficulties.

On 2 May 1996 the second Respondent entered into discussions with Blades & Company (the liquidators), who were formally appointed liquidators to the Company on 24 May 1996. As a result of those discussions the second Respondent was permitted to use the company vehicles pending the sale of the business by the liquidators. The second Respondent set up the business of J.S. Cowley (Haulage), we assume a firm using sub-contractors, rather than employed staff.

It was the Applicant's case that there had been a relevant transfer of the business of the first Respondent to the second Respondent, and that he had been unfairly dismissed by the second Respondent.

Procedural history

After the Applicant had presented his complaint the Tribunal notified the Respondents of a hearing date fixed for 23 September 1996. On 3 September the liquidators wrote to the Tribunal resisting the Applicant's claim. That letter was treated by the Tribunal as a Notice of Appearance by the first Respondent.

In the affidavit, the second Respondent accepts that he was notified of that date of hearing. He says that he assumed that the liquidators submissions would be treated as applying to him.

We pick up the story from the Industrial Tribunal's summary reasons dated 13 December 1996. On the Friday before the hearing fixed for 23 September 1996 the second Respondent sent in a Notice of Appearance out of time. That was not initially placed before the Tribunal, but later on in the day it was put before them. The hearing was adjourned and the second Respondent was given the chance to attend on a subsequent date, fixed for 14 November 1996.

In the affidavit the second Respondent accepts that he was given notice of the adjourned hearing, and informed that at that hearing consideration would be given to allowing his Notice of Appearance to stand. He states that he intended to attend the hearing on 14 November 1996, but then mistakenly thought that the date was 15 November. He says that he telephoned the Tribunal on 15 November to enquire about the procedure, only to be told that the hearing had taken place the previous day.

However, in paragraph 3 of their summary reasons the Tribunal refer to a telephone conversation prior to the hearing on 14 November. In a subsequent letter dated 16 June 1997 the Chairman has informed us that that conversation took place between a clerk of the Industrial Tribunal and the second Respondent, not the liquidators, on 7 November, when the second Respondent indicated that he would not be attending on 14 November.

He did not attend on that date. The Tribunal proceeded to determine the complaint. It found that there had been a relevant transfer from the first to the second Respondent; that the Applicant had been unfairly dismissed by the second Respondent, and it awarded compensation to him against the second Respondent, totalling £5,301.40.

Following promulgation of the Tribunal's summary reasons on 13 December 1996 it seems that the second Respondent consulted Solicitors who wrote to the Industrial Tribunal on 6 January 1997 requesting extended reasons for their decision.

By Rule 10(4) of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 the time for applying for extended reasons in this case expired 21 days after the date on which the summary reasons were promulgated, 13 December 1996. It follows that the application was made out of time.

By a letter dated 15 January 1997 the Chairman refused the application for extended reasons, on the basis that the second Respondent had not entered an appearance.

On 31 January 1997 the second Respondent lodged at the Employment Appeal Tribunal a Notice of Appeal which was dated 24 January 1997 against the Tribunal's substantive decision promulgated on 13 December 1996. We see from a letter to the Employment Appeal Tribunal of that date that the Notice of Appeal was initially sent, on 24 January, one day out of time, to the Industrial Tribunal by the Solicitors acting for the second Respondent. That Notice was defective in two respects;

(1) It did not have attached to it extended reasons for the decision appealed against, and

(2) It was out of time, even if the EAT would be prepared to entertain the appeal on the basis of the Tribunal's summary reasons under Rule 39(2) of the EAT Rules 1993. See EAT Rules, Rule 3(1).

On 26 February 1997 the second Respondent lodged a second Notice of Appeal dated 25 February against the Tribunal's order dated 15 January 1997 refusing to provide extended reasons for its substantive decision.

The Appeal

The first matter with which Mr Fortune, appearing on behalf of the second Respondent appellant, has had to deal is the fact that the first appeal against the substantive Tribunal decision is out of time.

He candidly recognises, in the light of the guidance provided by Mummery J in United Arab Emirates v Abdelghafar[1995] ICR 65, that he can advance no satisfactory excuse for the delay in lodging that Notice of Appeal. He describes what happened as an administrative oversight. In the absence of a good excuse we can see no grounds for extending time and accordingly the first appeal must be dismissed. That renders the second appeal academic, and that appeal must also be dismissed.

Although that is the basis of our decision, we are bound to say that this procedural failing is but one in a long line which itself happens to prove fatal. The earlier failings, to which we have adverted, rendered this appeal very difficult in any event.