United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE LINDSAY (PRESIDENT):

1. On 17th July 1998 Mr Chubb lodged an IT1 form alleging that he had been constructively dismissed. On 10th September 1998 there was a hearing before the Employment Tribunal at Norwich. On 25th September 1998 their decision was promulgated. The decision said that the tribunal had no jurisdiction to hear Mr Chubb's complaint because Mr Chubb was not an employee of any of three respondents whom he had chosen to proceed against.
2. Time for appealing that decision therefore expired on 6th November 1998. On 9th November 1998 the Notice of Appeal was lodged. Therefore it was out of time. On the same day, Mr Chubb's then solicitors said that if the Notice of Appeal was out of time could they please have an extension of time. On 11th November 1998, as it is quite often done, the EAT informally asked by telephone for reasons why time should be extended. On 12th November 1998 Mr Chubb's solicitors gave reasons.
3. In the meantime, as is customary, the Employment Appeal Tribunal had been trying to get in contact with the respondents. Mr P Bevan, PBD International Ltd and Rotapplique International Ltd. The EAT was unable to make contact with these respondents. As late as March 1999 the EAT was still trying to get in touch with the respondents but was having no success in the sense that no answers were forthcoming from any of three respondents.
4. On 9th June 1999 the Registrar refused the application to extend time. On 18th June 1999 there was, in effect, an appeal lodged against the Registrar's order and hence the matter comes before me.
5. I have reread the case of United Arab Emirates v Abdelghafar [1995] ICR 65, which is the case which has a convenient summary of the principles upon which leave to extend time is to be granted or withheld.
6. So far as the merits of the appeal come into play (and it is only rarely that they come in and to a limited extent as the United Arab Emirates case shows) the judgment of the Employment Tribunal here seems to be almost wholly one of fact. There is no discernible error of law. To that extent one might think that the appeal has no prospect of success and that therefore further to consider giving it an extension of time would be unwise. However, it is Mr Chubb's case as appellant that in at least two main respects the tribunal misunderstood the evidence that it heard. It is not appropriate at this interval to go into whether that is or is not the case but, were it to be the case that the tribunal had misunderstood the evidence, well, of course, the observation that their decision appears to be one of fact would not substantially decide the matter because they would, if that were shown, have come to a decision on fact which represented a misunderstanding or an incomplete understanding of the evidence.
7. I cannot, on that basis, treat the matter as if the appeal was hopeless. I do not want to encourage Mr Chubb to think that there is great hope behind this appeal but I am not prepared to proceed on the footing that the appeal is hopeless. To that extent, an extension of time is worth asking for. So much for the merits of the appeal.
8. So far as concerns the amount of delay, it was short. It was three days. But the factor I find most compelling in Mr Chubb's favour is that the three respondents, by failing to answer repeated letters from the EAT asking for their observations on Mr Chubb's application for an extension of time, have put it beyond themselves to complain of delay or to complain of any want of punctuality, or to complain about prejudice suffered from delay. That is one factor. Another is that Mr Chubb has claimed to have been unwell at times during the relevant 42 days. Despite the respondents having been given an opportunity to challenge that, there has been no challenge to that at all. Therefore, I must take it to be the case that the appellant was, indeed, unwell at times during the relevant 42 days. Those two factors together - the inability, now, of the respondents to complain of delay or prejudice suffered by the delay and the fact that, notwithstanding the opportunity to challenge, it is unchallenged that Mr Chubb had been unwell - those two factors, it seems to me, afford just enough ground for me to permit an extension of time.
9. The Notice of Appeal, although then just a potential Notice of Appeal, was received by the EAT on 9th November 1998. I extend time for the lodging of the Notice of Appeal to 10th November 1998 and thus, retrospectively, validate and give life to the Notice of Appeal which Mr Chubb has already lodged. The matter, therefore, goes forward.
10. One thing that does concern me is this. If Mr Chubb's case is going to be, when the matter comes on for a preliminary hearing, that the tribunal at Norwich at the hearing on 10th September 1998 materially misunderstood the evidence, that, as an allegation, can only truly be investigated if the Chairman's Notes of Evidence are available. I fear that unless the Chairman's Notes of Evidence are produced before the preliminary hearing the preliminary hearing is likely simply to adjourn in order to get the Chairman's Notes of Evidence. Although it might be unusual so to do, I thus not only extend time, but request the EAT to ask for the Chairman's Notes of Evidence so that even before the preliminary hearing they are available and so at the preliminary hearing the matter can be adjudged in the light of them.

[Discussion between the Judge and Mr Chubb as to which Notes will be required.]

11. It is requested that the Chairman's Notes of Evidence pertaining to the evidence Mr Robb and Mr Bevan be supplied by the learned Chairman.