United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR DAMIEN BROWN (of Counsel) Messrs Townsends Solicitors 18 London Road Newbury Berkshire RG14


 


MR JUSTICE MORISON (PRESIDENT): We are grateful to Mr Brown who has appeared on behalf of the appellants in this case for his assistance and for his submissions which have been cogently and responsibly made.

The purpose of this hearing has been to determine whether there is a point of law which is arguable in relation to a decision arrived at by an Industrial Tribunal Chairman which is contained in extended reason form, which reasons were sent to the parties in May 1997.

This is a case where the respondents to the application brought against them by Mrs Robson, and who are the appellants in this court, failed to enter a Notice of Appearance prior to the hearing of the complainants case. The circumstances in which they came to fail to enter a Notice of Appearance are fully set out in the decision which is clear, even if the facts are somewhat tangled, as the learned Chairman appropriately described them. Broadly speaking, this is a case where the appellants trade under a number of different names and companies, and there was confusion as to who was a corporation and who was not, and a confusion as to who was the employer.

The Industrial Tribunal Chairman picked his way through this tangled web of facts and concluded that the proper name of the employer was Greenmeadow Services (Newbury) Ltd. He also concluded that the Originating Application had been properly served. It was sent to the address which was acknowledged to have been at the time the official registered office, as listed at Company House. The Originating Application was never returned. Correct service is deemed to have taken place at the registered office of a limited company, and, as the tribunal concluded:

"7 ... that service in our view in this case was good."

The tribunal noted that the company's representative argued that it was not good service, even if it did reach the premises, in that is was incorrectly addressed to somebody who was not the applicant's employer. The tribunal dealt with this argument in this way:

"8 ... Ingenious though that argument might be the fact is that is the fault of the respondent hiding behind the falsity of holding itself out as being a different limited company. We do not think that reliance on such a false state of affairs is a good ground upon which we could exercise judicially a discretion to extend time."

The Chairman went through a number of other facts and in paragraph 10 said:

"10 ... Put bluntly, we have no realistic ground to extend time and accordingly [the application] is refused."

The Chairman amended the proceedings to include the correct company name, Greenmeadow Service (Newbury) Ltd, and amended the decision accordingly.

The sequence of events, therefore, is that after the Notice of Appearance had not been received, the tribunal sent to the respondents a hearing date, that was received as was indeed a letter from ACAS by the company, but it appeared that for various reasons the Company did not do anything in relation to those documents, and did not appear at the hearing on 3rd March.

At that hearing the tribunal proceeded, as they were entitled to do, in the absence of the respondents to make an award in the applicant's favour having concluded that she had been unlawfully discriminated against because she had been dismissed in connection with her pregnancy. She was awarded compensation and a recommendation was made that she be reinstated.

It seems to us, therefore, that as from 3rd March 1997, the option open to the employer was confined to inviting the Industrial Tribunal under Rule 3(2)(c) to ask it to review its decision on the grounds that the respondents did not receive notice of the proceedings which led to the decision. Instead they made an application for an extension of time for filing a Notice of Appearance. We are not convinced that that was the appropriate application to make. It seems to us that the way the rules work is that if before a decision has been arrived on the merits a respondent wishes to participate although he has not entered a Notice of Appearance within the time, then his proper course is to apply for an extension of time. But if the matter has proceeded to a hearing and a determination, then the options that are open to such a respondent is confined to the other matters set out in Rule 3(2), including, as I have indicated, inviting the tribunal to review its decision on the basis that it did not receive notice of proceedings.

Mr Brown submits that the learned Chairman failed really to take into account the interests of justice in exercising his discretion not to extend time. We do not consider that that is a fair assessment of the way in which he set out his approach. The Chairman has essentially been looking to see whether the employers have overcome what he regarded and we regard as the first hurdle in cases such as this, which is to satisfy the tribunal that there is good reason for the failure to enter an appearance. In this case, in particular, what the tribunal should have been concerned to do was to determine, as indeed this tribunal did, whether this was a case in which the tribunal proceedings had taken place without notice of them having been given to the respondents. On that basis, if our view of the Rules is correct, the Industrial Tribunal was fully entitled, having concluded that the respondent did have notice of the proceedings, to refuse their application for a review and consequently, as it seems to us, to refuse their application for leave for an extension of time.

In those circumstances, we do not consider that there is any arguable point of law. We do not think that the tribunal have misdirected themselves in law. We therefore dismiss this appeal.