United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K UNDERWOOD (Of Counsel) EMPLOYMENT LAW APPEAL ADVICE SCHEME (ELAAS)
For the First Respondent For the Second Respondent	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENT


 


MR JUSTICE MORISON: There are two matters before the Court; one concerns the full Court, and one concerns the President alone. In relation to the matter involving the full Court, the question at issue is whether there is an arguable point of law in relation to an appeal which the Appellant, Mr McGrath, has presented against a decision of an Employment Tribunal taken in October 1998, which refused his application for a review of a decision which they had arrived at on 8 May 1998 – a decision which was sent to the parties on that date.

1. The background circumstances to the first matter are these. Mr McGrath was a Director and shareholder of a company called Bleasdale Building Contractors Ltd. That company became insolvent. As a result, if they were employees who were owed money by that company at that date, then they had certain rights to make complaint against the Secretary of State for Trade and Industry. The Secretary of State refused to make any payments on the basis that neither Mr McGrath, nor his business partner Mr Woodcock, were employees who fell within the scheme. Mr McGrath brought proceedings against the Secretary of State. Those proceedings were heard on 5 May and, as I have indicated, the written decision of the Tribunal rejecting Mr McGrath's complaint was sent out on 8 May.
2. Mr Woodcock, his partner, had also presented a complaint to a Tribunal, saying that the Secretary of State was liable to him and for reasons for which are not known, the Tribunal considered Mr Woodcock's case separately. It may be that the Tribunal was unaware that there were two claims arising out of the same insolvency in relation to people who are both directors and shareholders of the same company.
3. As it was, the hearing took place of Mr Woodcock's complaint on 24 July 1998 and on 21 August 1998, the decision upholding Mr Woodcock's complaint was sent out. Thus there were two decisions of two different Tribunal Chairmen at Liverpool in relation to the same insolvency, and possibly in relation to the same situation for both Applicants, which had arrived at different results.
4. Mr McGrath tells me and I accept that he became aware of the second decision in favour of Mr Woodcock in October, and it was shortly thereafter that he applied to the Employment Tribunal for a review and indicated to the Employment Appeal Tribunal that he intended to appeal the matter as, to use his words, he will be:

"forced to go to a higher court as there is obviously a major defect within your system."

His complaint is perfectly understandable. He says that the system should not permit a situation to arise in which he and his partner in identical circumstances, as he would see it, have brought complaints which have been dealt with differently by the Employment Tribunal, as a result of them not hearing the cases together.

5. It seems to us that it is obviously arguable that once the matter was drawn to the attention of the Employment Tribunal in October 1998, that Mr McGrath's application for review demanded to be considered rather than simply ruled out of time. It is because of that arguability that we are prepared to say that that appeal should go ahead for a full hearing.
6. The second matter, which is for the President alone, relates to the Notice of Appeal which was filed on 16 November 1998, against the substantive decision rejecting Mr McGrath's complaint. The substantive decision in May 1998 meant that the appeal, when it was lodged, was 153 days out of time. As has been said more than once, the time limit for appealing to the Employment Appeal Tribunal 42 days is generous. The parties are aware of their rights as a result of literature which is made available to them at the time when the decision of the Employment Tribunal is published. The time limit for appealing is a limit, and not a target to be aimed at and, generally speaking, this Court is most reluctant to extend time, but like all matters where there is discretion involved, the discretion can be exercised judicially to avoid any obvious risk of injustice.
7. It seems to me that Mr McGrath has acted promptly and properly in relation to this matter, bearing in mind that he only became aware of the problem towards the end of October 1998. The Notice of Appeal as I have said was presented within two or three weeks after he first became aware of the issue. I have had the benefit of fuller material and the argument presented to me today by Mr Underwood then was available to the Registrar when she took her decision refusing leave. Her order is dated 29 January 1999.
8. I am prepared to allow the appeal against her order and therefore I extend time so as to render within time Mr McGrath's Notice of Appeal against the substantive decision sent to the parties on 8 May 1998. That will mean that there will have to be a full hearing of the matter in relation to the review decision. It would be sensible, obviously, for the substantive appeal to be heard at the same time. It seems to me unnecessary and undesirable that there should be a further preliminary hearing in relation to the substantive appeal, and I therefore direct that there be no preliminary hearing in relation to the substantive appeal but that both appeals be listed at the same time. The Secretary of State will obviously be given an opportunity to present an answer in relation to those matters and Skeleton Arguments will be produced in due time.
9. The directions that I can give are that it is unlikely that the appeal will take more than two hours to argue. This is a Category B case, I think. No Notes of Evidence from the Tribunals are required for the purposes of these appeals and the matter should come on relatively soon because the complaints have been outstanding for some time.