United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T KEMPSTER (of Counsel) Messrs Mincofs Solicitors 5 Osborne Road Jesmond Newcastle-upon-Tyne NE2 2AA


 


JUDGE PETER CLARK: The applicant before the Newcastle Employment Tribunal, Mr David Morris was employed by the appellant company, Turista Travel, as a van driver between 25th June 1998 and 12th March 1999, when he was dismissed by the company.

1. With the assistance of his trade union the applicant presented an Originating Application to the Employment Tribunal. The date of presentation is not clear to us on the papers, but he signed and dated the form IT1, 12th March 1999, and we assume it was presented very shortly thereafter. He complained of automatic unfair dismissal under s.101A of the Employment Rights Act 1996. His case was that he was dismissed because he refused to sign a contract of employment which contained an opt-out clause, under which the employee agreed to work in excess of the 48 hour week provided for in Regulation 4(1) of the Working Time Regulations 1998, designed to implement the Working Time Directive (92/103/EC).
2. Under the current Employment Tribunal Rules of Procedure the time for entering a Notice of Appearance is 21 days from receipt of the Originating Application. A Notice of Appearance presented out of time, but setting out the reasons why it was not presented within time, will be deemed to include an application for an extension of time for entering an appearance under Rule 15. (See Rule 3(3).) However, in the absence of such reasons, or a specific application for an extension of time under Rule 15, no valid Notice of Appearance is entered and the respondent will not be able to take part in the proceedings save for certain specified purposes. We shall return to the question of what steps the respondent took to defend these proceedings later in this judgment.
3. We simply pause to observe that the amendment to Rule 3(3), effected by SI1996/1757, is designed, it seems to us, to tighten up on respondents who do not enter an appearance in time and to place them closer to the applicant who fails to lodge an Originating Application within time and, indeed, a party dissatisfied with the decision of an Employment Tribunal who seeks to appeal to this tribunal out of time. The Rules on extending time for Notices of Appeal in the Employment Appeal Tribunal are strict. See United Arab Emirates v Abdelghafar [1995] ICR 65, in particular, a good excuse is required before time will be extended.
4. The case came on for hearing before a Chairman, Mr J D Myers sitting alone on 16th June 1999. The respondent did not appear and was not represented. The applicant was represented by a solicitor, Mr Cross.
5. By a decision with extended reasons dated 8th July 1999 the Chairman upheld the complaint. He found that the reason for the applicant's dismissal was his refusal to sign the opt-out clause. He was unfairly dismissed under s.101A. Indeed, the Chairman was fortified in that conclusion by a Notice of Appearance submitted, out of time and not validated, on behalf of the company dated 10th May 1999. That document effectively admits that the reason for the dismissal was the applicant's refusal to sign the draft contract containing the opt-out clause, which was the proposed term to which he took exception. No mention is made in that pleading of Regulation 18 of the Working Time Regulations to which we shall return.
6. Having found the dismissal to be unfair the Chairman proceeded to assess compensation at the then statutory maximum level of £12,000.
7. The company, thereafter, instructed solicitors, who entered a Notice of Appeal, settled by Counsel, dated 12th August 1999. The appeal was lodged in time.
8. Because no valid Notice of Appearance had been entered below and no applicant for an extension of time under Rule 15 had been made, the provisions of paragraph 16 of the EAT Practice Direction come into play. An appellant in these circumstances will not be allowed to pursue an appeal unless we are satisfied at this preliminary hearing that:

(a) there is a good excuse for failing to enter a Notice of Appearance and for failing to apply for an extension of time; and

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

In order to satisfy us on those matters the appellant must lodge an affidavit complying with the requirements of Rule 16(3).

9. The appellants' evidence before us consists of three affidavits sworn by George Rutter, a director and general manager of the company, on 12th August, 31st August and 14th September 1999.
10. The requirements of Rule 16(2) are conjunctive. It is convenient to deal first with the question as to whether the company has raised a reasonably arguable defence to the complaint. We see from a further draft Notice of Appearance, again settled by Counsel, Mr Paul Cape, who settled the Notice of Appeal, that the point taken depends on the proper construction of the Working Time Regulations. Reference is made to Regulation 18, which, as we have observed, was not pleaded in the original Notice of Appearance dated 10th May 1999, nor does it appear to have been drawn to the attention of the Chairman by the solicitor for the applicant; at all events, it is not referred to in the Chairman's reasons.
11. Regulation 18 provides for exceptions to the 48-hour week requirement contained in Regulation 4(1). Regulation 4(1) does not apply to the following sectors of activity:

"(i) air, rail, road, sea, inland waterway and lake transport;"

Thus, Mr Kempster before us, submits that it is at the very least reasonably arguable that the applicant's employment as a van driver is excluded from the Regulation 4(1) requirement.

12. We see the force of that submission, although we think that the answer may depend in part on further findings of fact by the Employment Tribunal.
13. However, we also have to consider the excuse put forward by the appellant for their failure to enter an appearance. Mr Rutter in his first affidavit gives this account that on receipt of the Originating Application he consulted with his fellow director, Mr Bernstone. This appears to be a small company and it had not in the past been involved in Employment Tribunal proceedings. The directors claim no expertise in employment law, and it was decided that Mr Rutter's sister-in-law, who had some familiarity with employment law, would take over the matter. In due course, she drew up the Notice of Appearance, to which the Chairman referred in his reasons. Mr Rutter accepts that that Notice of Appearance does not take the Regulation 18 point. By the time the Notice of Appearance was lodged, the 21-day time limit had expired. The Notice of Appearance itself gave no reasons as to why a delay had occurred. In due course, no separate application was made for an extension of time under Rule 15.
14. The tribunal wrote to the appellant company on 20th May 1999 pointing out that the Notice of Appearance was out of time and requiring the appellant to submit written reasons as to why the tribunal should grant an extension of time under Rule 15.
15. The company was warned that if such written explanation was not provided within seven days, the case would proceed on the basis that a Notice of Appearance had not been entered. With that letter, according to the affidavit of Mr Rutter, notice for the hearing fixed for 16th June was attached, but that notice was endorsed:

"FOR INFO ONLY BEING A RESPONDENT WHO HAS NOT ENTERED AN APPEARANCE"

16. At this stage it was open to the appellant to make application for an extension of time and in the normal course of events such an extension would be granted.
17. Having received that letter Mr Bernstone instructed Mr Rutter to take the matter up with the company's solicitors. He deposes to the fact that those solicitors gave advice as to steps it should then be taken. There is no suggestion in the affidavit that those solicitors gave bad advice.
18. Then at paragraph 13 of the affidavit he says this:

"For reasons I cannot explain, I seem to have simply buried my head in the sand and failed to appraise Mr Bernstone of the advice that had been proffered. Had I done so, immediate steps would have been taken to remedy matters."

Thus the matter was left in the period between 20th May and 16th June 1999 and on 16th June there was no attendance by or on behalf of the company. Again, we observe that even at that late stage had an application been made for an extension of time then, subject to the question of costs, there was every prospect that such extension would be granted.

19. In these circumstances, we have to ask ourselves whether the appellant has put forward a good excuse for its default? In our judgment, not only have they failed to put forward a good excuse, they have put forward no excuse at all.
20. In these circumstances, we conclude that the appellant has failed to satisfy us under paragraph 16(2)(i) of the Practice Direction. Balancing the prejudice to the applicant if his case is now re-opened against the prejudice to the company in not being able to pursue the proposed defence, in circumstances where the appellant allowed the matter to proceed without its participation entirely through its own default, we have concluded that this not a proper case to allow forward to a full hearing and, consequently, the appeal must be dismissed.