United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR F CANNATELLA (Representative)


 


JUDGE J HULL QC: This is an appeal to us by Glinwell Marketing Ltd against a decision of the Industrial Tribunal sitting at Bedford on 27 February 1998, in which they refused to review an earlier decision which they had made and to grant an extension of time to the Appellants to put in their IT3, their Answer, to a complaint made by Mr Abdelali Darhour. He, who was the complainant to the Industrial Tribunal, is the Respondent, of course, to this appeal.

He is a gentleman from Morocco, as we understand, whose English is very poor and he was employed by Glinwell Marketing Ltd as a cucumber cutter and cucumber plant trimmer, Glinwell Marketing being vegetable growers on a commercial scale with, we understand, a substantial undertaking in St Albans.

Mr Darhour's employment began on 6 June 1995 and he was dismissed on 20 July 1997 after, in the view of his employers, he had been guilty of fighting a fellow employee and (said the employers) not for the first time. Mr Darhour being thus summarily dismissed, presented his complaint to the Tribunal saying that he had been unfairly dismissed. There had been a breach of contract and he also made a claim, which was not made out, that he had been discriminated against on the ground of race; and he asked for compensation.

I will go through the history as shortly as I can. Most of the documents are copied several times. At page 50 of our bundle the Industrial Tribunal, through its office, sent a letter to Glinwell Marketing explaining the position. "The Industrial Tribunal has registered a complaint made against you by Mr A. Darhour". Then there was sent the Originating Application which Mr Darhour had filled in, an explanatory booklet and a Notice of Appearance form. That was, of course, for Glinwell Marketing Ltd to fill in and file within 21 days and so, in case that should not be understood, the letter goes on: "Under the Rules of Procedure you are required to enter an appearance within 21 days of receiving the application". Then they are told how to do that. Then underlined: "If you do present a late Notice of Appearance you should set out the reasons why the Notice was not presented in time. You will not be entitled to defend the proceedings if you fail to enter an appearance, although you will be sent a copy of the notice of hearing and the Tribunal decision". Now that was plain as anything could be. If Glinwell Marketing wanted to defend the case they must enter an Appearance and fill in the IT3 form.

Then there was a letter from ACAS. That is dated 23 September and one of the places that appears in our bundle is at page 29. That is the Advisory Conciliation and Arbitration Service who offered, if they could, to be of service in reconciling the parties or negotiating a settlement. They said in that letter that "ACAS operates independently of the Tribunal" and there is a pamphlet explaining their involvement in the case. That, of course, without more, could not possibly operate to produce any deferment of the hearing or anything of that sort. Then on 16 October there was notice of the hearing which was to take place. We can find that amongst our papers at page 30.

The Tribunal's organisation wrote to Glinwell "For information only" because Glinwell had not put in their Appearance. "The application will be heard on Friday, 21 November 1997. You are responsible for ensuring that all the witnesses you may wish to call can attend on the hearing date and no application for postponement will be entertained except in exceptional circumstances". So Glinwell Marketing was reminded that it was for information only, but the hearing was to take place on 21 November 1997.

The next thing that happened was a letter from Mr Fakes, who has attended here today, on 19 November. We can see that at page 31. This was two days before the hearing and something like four weeks at least after the Tribunal's letter had been received, acknowledging receipt of the communication and saying:

"I was under the impression that the ACAS Service, who had been in touch with us, were mediating between us and Mr Darhour, and that the Industrial Tribunal Notice was a legal formality, especially with the 'for information only' annotation.

I am now getting concerned that there has been no recent communication from ACAS, and the Tribunal hearing is only 2 days away.

Can you please advise me as soon as possible what action I need to take, as I have never been involved in cases like this before."

That is a rather difficult statement to accept because we have been told that Glinwell had, in fact, been involved in two previous complaints by employees.

That was the letter which was faxed through. One simply cannot understand how Mr Fakes left it as long as that, because we understand that what had happened was that Mr Cannatella, not having read the Tribunal papers, simply handed them over to Mr Fakes and asked him to do whatever was necessary.

Then there was a letter in reply to that which can be seen at page 32, replying to Mr Fakes on that very same day, thanking him for his letter and saying

"... a Chairman of the Tribunals (Mr Robjant) ... has directed as follows:

'Rule 3 (2) provides that a Respondent who has not entered an appearance shall not be entitled to take part in the proceedings, except for a number of limited purposes, which includes applying for an extension of time.

The Hearing will proceed on 21 November 1997."

So that was the message from the Tribunal; that they can apply for an extension of time, but take no other part in the proceedings and "The Hearing will proceed on 21 November 1997". On 21 November the Industrial Tribunal did, indeed, sit. Glinwell Marketing Ltd, having been told, not once but more than once, that the hearing was to proceed, did not attend. They said, apparently, they thought they could see no point in doing so. The Industrial Tribunal was attended by Mr Darhour. They concluded that he had been unfairly dismissed and their decision is at page 2 of our papers. They say, among other things, that they accepted what Mr Darhour had told them. They say that he had denied assaulting the other gentleman, whom he was alleged to have assaulted at work. They say that he told them that they had only exchanged insults and they say, "We accept Mr Darhour's evidence".

Then they go on to consider the merits of the case. They consider the earnings figures which they have been given. They have to make an estimate of the extent of the loss suffered by the employee. It can be said that they might well have arrived at a much higher award and had to cut it down, but the award which they did arrive at was £10,938.92 and that was their award. It was registered and sent on 1 December 1997.

On 12 December, some ten days later, Glinwell Marketing wrote asking for a review with regard to amount. There is no quarrel with the findings of the Tribunal with regard to liability, but there was a request for a review with regard to amount and then on 22 January 1998 (we can see this at page 11) a Notice of Appearance was, at last, put in with the aid of Solicitors and the Notice of Appearance wished to raise, not merely the amount but also to say that, in fact, the Tribunal should never have made any award at all. That was the application. That application to review their decision and to allow the appearance to be entered out of time was considered by the Tribunal on 27 February (that is at page 33 of our bundle). The Tribunal went through the facts at considerable length, and set them out, referring to the various documents. Then, having considered those matters and having said that the Solicitors, who were eventually consulted, had acted properly and timeously, they say, in paragraph 5:

"5 The Notice of Appearance submitted by the Respondent deals only with the Applicant's complaint of unfair dismissal. The Respondent concedes that were the tribunal to validate the Notice, it would have to apply for leave to amend to defend the claim of racial discrimination.

6. Having listened carefully to the evidence and the submissions made on behalf of the Respondent, we are unanimously of the view that the Respondent in this case failed to take the proceedings issued by the Applicant seriously. It adopted a cavalier attitude, ignoring correspondence and giving no thought to the case until two days before the hearing and when told by letter that it could apply for an extension of time, took a conscious decision not to attend on the appointed day. These matters we have taken into consideration, as indeed we must when exercising our discretion under Rule 15. We have also taken account of the fact that the Respondent now avers that it has an arguable defence to the Applicant's complaint of unfair dismissal. We have to balance against this argument the interests of the Applicant who has acted properly throughout. Finally, we take into consideration that there must be finality to litigation. It cannot be right for a Respondent who chooses to take no part in proceedings to then be allowed to reopen them if dissatisfied with the Decision. On balance therefore, we conclude that we must refuse the Respondent's Application to extend time sufficiently to validate the Notice of Appearance from which it follows that the Application for a review must also be refused."

Now that was their decision. The discretion to reopen a case which has been decided and to allow it to be reviewed is a discretion which is given to the Tribunal, not to us. We have to consider whether (and this is the only point of law which we can consider) the Industrial Tribunal have exercised their discretion in a way which falls outside its legitimate exercise. Have they ignored matters which they should have taken into consideration? Have they taken into consideration matters which they ought not to have taken into consideration? Is their decision one which no reasonable Tribunal, directing itself properly as to the law, could have reached? Have they shown, by something that they have said, that they are making an error of law in exercising their discretion? Those are the matters which we have to consider.

We have looked through it. We have heard Mr Cannatella and certain remarks by Mr Fakes himself. We have all come to the conclusion that it is not arguable that there is here any error of law. The Tribunal have done exactly what they should do. They have first of all started on the basis that it is for any party who does not attend, who does not comply with the Tribunal's rules, to show why that was. The Tribunal was forced to say, it was because of their cavalier attitude. How was it that the employers, knowing of the date of the hearing, failed to attend? The Tribunal says that they took a deliberate decision not to attend. Those are very material matters for them.

Then the Tribunal looked at the prejudice to the parties. They had tried the case once. If they were to reopen it, clearly it would mean bringing back Mr Darhour, not without expense, from his job and bringing with him his interpreter and having the case retried with the dangers involved in that. Then, of course, they had to have regard, as they say, to the interests of justice.

It has been said repeatedly by the Court of Appeal in recent years that time limits are there to be obeyed and that if Courts or Tribunals are to allow them to be departed from, that must be for good reason. If a time limit is missed and a party wishes to reopen it and to be heard, notwithstanding that the time limit has been missed, then it is for the Tribunal first of all to expect that party to show good reason for it. The Tribunal must ask why is it that this time limit has been missed - and then it must look to see what the consequences are in terms of prejudice to each party and, of course, it must consider the interests of justice itself in finality, because Industrial Tribunals are, at the moment, seriously overloaded with work and a great deal of public expense is incurred if new trials are ordered.

Having considered all those matters, they all told one way. Here, the Tribunal says, this was a decision by the employers quite deliberately not to attend. They did not accept the explanations and excuses which were put forward - that was for them as the Tribunal of fact. All we can say, having looked at it, is this; that this Tribunal exercised their discretion in a way which appears to us to be perfectly open to them. We should be rather surprised if they had exercised it in any other way. They were perfectly entitled, in our view, to exercise their discretion as they did, and in those circumstances this appeal is seen to be simply not maintainable and we have to say that it cannot proceed to a full hearing and must be dismissed at this stage; and so we order that the appeal is to be dismissed now.