United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J GALBRAITH-MARTEN (of Counsel) Messrs Thompsons Congress House Great Russell Street London WC1B 3LW
For the Respondent	No appearance by or on behalf of the Respondent


 


JUDGE CLARK

1. The Appellant Mr Sinada, commenced these proceedings by an Originating Application dated 29 April 1999. He complained of unfair dismissal and breach of contract on the part of his former employer, the Respondent ARA Programming & Distributions Ltd. At that stage he was represented by his Trade Union, BECTU. On the form IT1 he gave the name and address of Sharon Elliott, an official of that union, as his representative. Accordingly that was the address to which Notices were to be sent by the Employment Tribunal.
2. A date for the hearing of his complaint, which was resisted, was fixed for 30 July 1999, before the London (South) Tribunal. Before that hearing solicitors, Thompsons, were instructed on behalf of the Appellant. On 24 June 1999 they wrote to the Employment Tribunal, with a copy to the Respondent solicitors, Barlow Lyde & Gilbert, informing them that they were now instructed on the Appellants behalf and asked that all further correspondence be sent to them. I am satisfied that that letter constituted effective notice of change for the purpose of Rule 21(4) of the Employment Tribunal Rules of Procedure.
3. The case was heard on 30 July 1999. The Appellant was represented by Counsel instructed by Thompsons.
4. At the end of the hearing the Employment Tribunal reserved their decision. A decision dismissing the complaint was then promulgated with extended reasons on 24 August 1999. I have before me a statement by Nicola Dandridge the solicitor with conduct of the Appellants case at Thompsons. It seems that she waited for a decision but none came. Finally on 7 October 1999, she wrote to the Employment Tribunal enquiring when the reasons would be forthcoming.
5. On 14 October she was telephoned by the Employment Tribunal and told that the decision would be out on Monday 18 October. She was out of the office on 18 and 19 October and returned on 20 October to find that the date of promulgation of the decision was 24 August. The following day she launched a Notice of Appeal coupled with an application for extension of time for appealing.
6. The application was opposed by the Respondents solicitors by letter date 26 November 1999. Apart from contending that the grounds of appeal had no merit the Respondent submit that the Appellant's solicitors failure to contact the Employment Tribunal offices until almost 10 weeks after the hearing was not a good excuse for the delay in appealing.
7. The Appellants solicitors responded on 30 November; - they pointed out that a delay of 9 weeks before promulgation of an Employment Tribunal's decision is not unusual. They simply did not receive it before chasing up the matter on 7 October.
8. Having considered the parties' representations the Registrar, by an order dated 7 January 2000, refused to grant an extension time for appealing. Against that order the Appellant's solicitor appealed by a letter dated 11 January.
9. That appeal was first listed before the President, Mr Justice Lindsay on 12 April 2000. The appeal was adjourned, so that the Appellants solicitors could lodge a copy of their letter to the Employment Tribunal dated 24 June, notifying a change of representation. That was done on 26 April 2000. The matter now comes before me on this restored hearing.
10. I have before me a fax letter from Baker Tilley dated 24 July pointing out that the Respondent company is now in liquidation and seeking an adjournment of this hearing. The Appellants Counsel and solicitor are here. Mr Galbraith-Marten opposes the application. It seems to me that it is right that I should proceed to hear this appeal.

Extension of Time for Appealing

11. Time for appealing to the Employment Appeal Tribunal will only be extended in exceptional circumstances. The principles upon which I am required to exercise my discretion in this case are helpfully set out in the judgment of Mr Justice Mummery in United Arab Emirates –v- Abdelghafar (1995) ICR 65, recently affirmed by the Court of Appeal in Aziz –v- Bethnal Green City Challenge Co Ltd (2000) IRLR 111. In short, has the Appellant provided a full, honest and acceptable explanation of the reasons for the delay?
12. I am not at this stage greatly concerned with the merits of the appeal. See Abdelghafar Page72A. As to the explanation put forward for the delay in appealing I am satisfied:

(1) that the Appellant gave proper notice of change of representation to the Employment Tribunal on 24 June 1999. It follows that a copy of the decision, on promulgation ought to have been sent to Thompsons. Service on the Appellants union, the former representative would not be good service on the Appellant, although I am told today that the union did not receive a copy of the decision.

(2) That the Appellant's solicitors did not receive a copy of the decision until 18 October 1999.

(3) That once the Appellants solicitors became aware on 20 October 1999 that the decision had been promulgated on 24 August 1999, they, through Ms Dandridge, took immediate steps to lodge a Notice of Appeal and application for an extension of time.

13. Having satisfied myself that an honest explanation has been put forward for the delay in this case, the real question is whether it is an acceptable explanation.
14. I have considered the Employment Appeal Tribunal decisions on reasonably practicability where an Originating Application is sent to the Employment Tribunal but not received. See Capital Foods Retail Ltd –v- Corrigan (1993) IRLR 430; Camden & Islington Community Services NHS Trust –v- Kennedy (1996) IRLR 381. The principle emerging from those cases is that there is an obligation on solicitors to check that the conduct of business is taking a normal course. Failure to make enquires when no acknowledgement of the Origination Application is received within a short time for the Employment Tribunal will not render it reasonably practicable to present the complaint within time.
15. Having heard Mr Galbraith-Marten's submissions on the analogy between the present case and the case of Originating Applications lost in the post, it seems to me that a distinction ought to be drawn between the 2 sets of cases. In the case of an Origination Application going astray an acknowledgement of receipt may reasonably be expected within a short time of posting the from the Employment Tribunal. In the present case there is no such expectation, I have been shown by way of a snap shot the time lag between the conclusion of a hearing and promulgation of the Employment Tribunal's decision in a number of cases of which Ms Dandridge has conduct. The time scales vary significantly.
16. It seems to me that delays in promulgating Tribunals decisions are not unusual, and the point is made with some force that telephone calls from solicitors enquiring about when a decision may be expected are not altogether welcomed by the Tribunal. The perception and it need not be more than this, is that it is not always in the best interests of the client for his solicitor to appear to be pressurising the Tribunal to produce a decision.
17. In these circumstances I am just persuaded on the particular facts of the present case to accept the explanation put forward for the delay. I make no general observation on other cases.
18. Accordingly I shall allow this appeal and exercise my discretion in favour of extending time for the substantive appeal so as to render it valid.