United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R DOWNEY (of Counsel) Messrs Gosschalks Solicitors Queen Gardens Hull HU1 3DZ


 


MR JUSTICE BELL: This is an ex parte preliminary hearing in respect of an appeal by SPS against a decision of an Industrial Tribunal held at Hull on 18th July 1997. The decision was entered in the Register on 29th July 1997.

The essential history is that Mr Lack was employed by Guarda as a security officer at Scunthorpe Shopping Centre. In November 1996 the manager of the Shopping Centre gave Guarda notice that its contract would cease on 6th January 1997. The security contract was awarded to SPS and the Shopping Centre manager wanted SPS to take on the same security officers as had worked at the Shopping Centre for Guarda.

In about September 1996 Mr Lack fell ill and was off work for a period. There may be an issue as to whether the Shopping Centre manager told Mr Lack that he was not to work at the Shopping Centre again because of his ill health, or whether in fact Mr Lack was recovered, fit and well enough to work for SPS if they chose to continue to employ him from 6th January 1997.

SPS's stand was that it was to take on only those officers employed at the Shopping Centre on 6th January 1997, and that did not include Mr Lack.

In any event, SPS never took on Mr Lack, and by an Originating Application dated 11th March 1997, he claimed various remedies including unfair dismissal from SPS as first respondent and Guarda as second respondent.

Guarda entered a Notice of Appearance, but the Industrial Tribunal never received a Notice of Appearance from SPS.

On 18th July 1997 Mr Lack and Guarda were represented at the Industrial Tribunal hearing. SPS was not represented and did not attend. The Industrial Tribunal concluded that there had been a relevant transfer of Guarda's undertaking to SPS and that Mr Lack had been unfairly dismissed by SPS by the operation of Regulation 8(1) of TUPE and that it was not saved by Regulation 8(2). It therefore dismissed Mr Lack's claims against Guarda, but found that his claim of unfair dismissal against SPS had been proved, and it made an award of £10,249.

An application for review failed.

SPS now appeals against the decision making the award against it.

Its Notice of Appeal dated 8th September 1997 challenges various of the Industrial Tribunal's findings, particular in relation to the transfer of Guarda's employment obligations towards Mr Lack to SPS by the operation of TUPE. But whatever the merit of those points, SPS faces the provisions of paragraph 16 of the Practice Direction EAT Procedure 29th March 1996.

That paragraph provides:

"(1) If the Appellant in a case has not entered a Notice of Appearance before the Industrial Tribunal and has not applied to the Industrial Tribunal for an extension of time for doing so or has applied for such an extension and been refused it, the Notice of Appeal will be immediately set down to be heard as a preliminary hearing.

(2) The Appellant will not be permitted to pursue the appeal unless the EAT is satisfied at the preliminary hearing that:

(1) there is a good excuse for failing to enter a Notice of Appearance and (if that be the case) for failing to apply for such an extension of time; and

(2) there is a reasonably arguable defence to the claim in the Originating Application."

It follows that regardless of the question of whether SPS has a reasonably arguable defence to the claim in Mr Lack's Originating Application, it will not be permitted to pursue the appeal unless we are satisfied that there is a good excuse for failing to enter a Notice of Appearance and, if that be the case, for failing to apply for an extension of time to enter a Notice of Appearance. The time for entering a Notice of Appearance is 21 days from receiving a copy of the Originating Application subject of course to any extension of time.

SPS has provided evidence to the following effect. Mr Lack's Originating Application on Form IT1 was presented on 1st April 1997. About two days later SPS received a copy. On 15th April 1997 Guarda submitted its Notice of Appearance on Form IT3. There was a telephone call on 20th May 1997 between SPS and the Industrial Tribunal Secretariat. On 20th May 1997 Notice of Hearing was sent by the Industrial Tribunal to SPS "for information". It could only be for information because of course SPS had not in fact entered a Notice of Appearance at that time. Mr Harrison, the Operations Manager of SPS, wrote a letter dated 27th May 1997 to the Regional Secretary of the Industrial Tribunal in Leeds headed "Late Notice of Appearance" giving the case number and reading as follows:

"Please find enclosed our Form IT3 E & W in respect of the above case.

We will be grateful if you would consider our application in respect of the above case. Our late response results from the Notice of Appearance being passed to a member of staff who has been absent for an extended period. We apologise for the delay and will ensure a prompt response to all future communications.

We think you for your assistance."

It was not in fact true that the Notice of Appearance had been passed to a member of staff who had been absent for an extended period. Mr Beharrell, the Chairman of SPS, seeks to explain how Mr Harrison could have come to write what he did. (It crosses our mind to wonder whether in the light of that misleading statement in the letter, the letter was ever written or at least sent off at all, but for the purposes of this application, we accept that it was.)

Mr Downey, acting for SPS this morning, contends that that letter amounts to a sufficient application for an extension of time for presenting a Notice of Appearance. We very gravely doubt that, but however that may be, it was never received by the Industrial Tribunal; there was no follow-up by SPS to enquire what was happening, and on 18th July 1997 the Industrial Tribunal took place without a Notice of Appearance having been presented.

In an attempt to persuade us that there was good reason for failing to enter a Notice of Appearance, SPS has, through its Chairman Mr Beharrell, filed an affidavit seeking to give reasons for failure to enter a Notice of Appearance. In summary they are as follows. Firstly, the initial failure to enter a Notice of Appearance was due to the Notice of the Originating Application being filed away without its urgency being appreciated. It was then opened by the then Managing Director and passed to the Sales Manager who left it for the Chairman whose attention was not in fact drawn to it. Secondly, the letter dated 27th May 1997 with the IT3 enclosed was sent but does not appear to have been received by the Industrial Tribunal. Thirdly, Mr Beharrell wrongly assumed that the hearing would be adjourned on the receipt of the appellants' IT3.

That explanation, in our judgment, does not begin to get anywhere near amounting to a good excuse for failing to enter a Notice of Appearance, or for failing to apply for an extension of time to file a Notice of Appearance or to ensure that any letter, for instance, the 27th May 1997 letter, was being treated as an application for extension of time. By its own account SPS dealt haphazardly with Mr Lack's IT1 when it was received. Accepting the fact of telephone communication with the Industrial Tribunal on 19th May 1997, there was no follow up, as we have already said, to the 27th May 1997 letter from SPS. SPS had no basis whatsoever, in our judgment, for assuming that the hearing date would be adjourned. On reading paragraph 8 of Mr Beharrell's affidavit, page 25 of our bundle, it appears that SPS is a not insubstantial company employing 170 security officers on a 24 hour roster, but it chooses, no doubt for its own good commercial reasons, to run its business with a very small head office team working very long hours. That may explain why insufficient attention was paid to the Industrial Tribunal proceedings brought against it by Mr Lack, but it cannot, in our view, be a good excuse for not filing a Notice of Appearance in time, or not applying for an extension of time to file one out of time.

This morning, Mr Downey has urged us to treat the words "good excuse" in paragraph 16(2)(1) of the Practice Direction as requiring only some explanation of how the Originating Application and the filing of a proper Notice of Appearance came to be neglected.

We cannot accept that. If that were so, it would have been easy just to use the word "explanation" instead of the words "good excuse". We find no good excuse in this case. Putting it at its lowest, we are certainly not satisfied that there was one. It follows that this appeal must fall at the first hurdle presented by paragraph 16(2)(1) of the Practice Direction. Those provisions in that paragraph are not arbitrary, they are based on sound public policy.