United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C BARLOW (of Counsel) Messrs Huttons Solicitors 16-18 St Andrews Crescent Cardiff CF1 3DD


 


MR JUSTICE MAURICE KAY: There is listed before us today a preliminary hearing in the appeal of Firlands Training Ltd against Jones.

The history of the matter is that Mr Jones was employed from 1974 in a training capacity by a predecessor company of Firlands Training Ltd and of AST Training (Wales) Ltd. The business was sold to a group of four companies which included Firlands and AST on 2nd September 1993. On 24th December 1994 Mr Jones was given three months notice of dismissal and his dismissal became effective on 24th March 1995.

On 13th June 1995 he commenced proceedings in the Industrial Tribunal against AST claiming unfair dismissal. At that stage Firlands were not party to the proceedings. However, on 10th August 1995 they were added by order of the Industrial Tribunal.

Under the Rules then prevailing it was incumbent upon Firlands to lodge a form IT3 within 14 days. They failed to do so.

So far as the proceedings in the tribunal are concerned, the next significant date is one which we are unable to identify with precision, but it is apparent that in early 1997 Firlands received notification that the matter was to be heard in the Industrial Tribunal in Cardiff on 25th March 1997. Firlands had taken no procedural step up to that point.

If they intended to resist the application against them, they ought then, if not earlier, to have applied for an extension of time within which to lodge an IT3. They did not do so. The only step taken by Firlands or on their behalf prior to the hearing on 25th March 1997, was that Mr Doyle, a director of the Company, wrote a letter to the Industrial Tribunal on 11th March 1997. In it he sought to explain that it was something of a surprise that the case should be allowed to continue and that Firlands should have been added as a party. The case he set out in the letter was that Mr Jones had been employed by AST and not by Firlands. We should add that by this time AST was in liquidation.

In the letter of 11th March 1997 Mr Doyle complained about the joinder of Firlands, said that he was happy to discuss the matter with Mr Jones' union representative, but concluded:

"... I do not consider that any useful purpose can be gained, in view of the fact that Mr Jones has received his full redundancy entitlement from the Government office, and more than adequate notice and discussion.

Perhaps you would place this matter before the Chairman, or refer to the applicants Representative, as in my opinion the Tribunal's time would be wasted."

On 25th March 1997 the hearing proceeded in the absence of Mr Doyle, or any representation on behalf of Firlands. The decision reached by the Industrial Tribunal was that Mr Jones had been unfairly dismissed and Firlands were ordered to pay him £16,022.50 as compensation, subject to the recoupment provisions.

This prompted a response on behalf of Firlands. Solicitors acting on their behalf wrote to the Chairman a letter dated 28th April 1997, the essence of which was to ask for an extension of time in which to file an IT3 and, if granted, to ask for a review of the decision on 25th March 1997. That letter was placed before the Chairman of the tribunal who refused the application. The letter notifying refusal is dated 2nd May 1997 and it states that Firlands:

"... were notified that they were added to the case by order dated 10 August 1995. They were fully aware of the proceedings as is apparent not only from Mr Doyle's letter of 11 March 1997, but also from his several phone calls to this office in which he asserted many times that he had no intention of attending the hearing. Your request for extension of time to present notice of appearance is refused."

It is against that decision that Firlands now seek to appeal.

Their case has been skilfully advanced by Mr Barlow this morning. He submits and we accept, that for Firlands' appeal to succeed they would have to satisfy this tribunal of three matters:-

(1) that there was a good excuse for failing to enter a Notice of Appearance or apply for an extension of time prior to 28th April 1997;

(2) that a draft IT3 now included with the papers discloses a reasonably arguable defence to Mr Jones' claim; and

(3) that the tribunal's decision of 2nd May 1997 discloses an arguable error of law.

We should add, if it is not already obvious, that the defence relied upon is that Firlands were not Mr Jones' employers.

We have considered these submissions with care. We have read an affidavit sworn by Mr Doyle on 19th September 1997, together with the exhibits attached to it. We are of the unanimous conclusion that Firlands, through Mr Doyle, have failed to show that there was a good excuse for failing to enter a Notice of Appearance at a much earlier stage.

Mr Barlow in making his submissions understandably and justifiably referred to a headstrong and cavalier attitude on behalf of Firlands and Mr Doyle. We agree with those epithets. Whatever his feelings on the subject when Firlands were joined in 1995, and whatever may have transpired between Mr Doyle and Mr Gallagher, the union representative at about that time, about which we make no findings, it was entirely obvious early in 1997 that this case against Firlands was going to be pressed before the Industrial Tribunal in Cardiff and a date was known. We regard the letter of 11th March 1997 as evincing an attitude towards the proceedings which cannot be subsumed under the notion of there being a good excuse for omitting to do what the Rules require. We are entirely satisfied that Firlands do not have an arguable case before this tribunal that they had a good excuse as the law requires.

It seems to us that the decision of the Industrial Tribunal made on 2nd May was entirely right. We do not think it can be criticised in any way. There would be no point in this appeal proceeding to a full hearing. It is hereby dismissed.