United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Appellant neither Present nor Represented
For the Respondent	Respondent neither Present nor Represented


 


MR JUSTICE LINDSAY (PRESIDENT)

1. This is the appeal of Mr D C Yeo in the matter of Yeo –v- Guardrite Plc. Mr Yeo does not attend, nor is he represented. He appeals against the refusal of the Registrar to extend time for the lodging of the Notice of Appeal.
2. On 24 June 1999 Mr Yeo lodged an IT1 claiming unlawful deduction. The particular form that he claimed was that there had been non-payment of a thing called a site allowance. On 1 July there was an IT3 lodged on behalf of Guardrite claiming that from 1 April 1999 the site allowance had been abolished and that the aggregate rate of pay had increased from £3.20 an hour made up of £3.05 basic plus 15 pence per hour site allowance to an all-in rate of £3.60. The IT3 raises the common sense point

"How can an increase be an unlawful deduction in wages?"

3. On 9 August 1999 there was a hearing at the Employment Appeal Tribunal and on 22 September 1999 the decision was sent to the parties. It was a unanimous decision of the Tribunal

"that this application fails and is dismissed."

4. Mr Yeo had been allowed to widen his complaint because in the reasons given, which were in extended form, paragraph 2 says: -

"Subsequently, by letter dated 30 July 1999 the applicant sought leave, which was granted, to add a claim under Section 1 of the Employment Rights Act 1996, that is to say a claim concerned with the provision of a written statement of terms and conditions of employment."

That new claim failed. The Tribunal held: -

"The applicant was supplied with written details of the main terms of contract of employment and a copy of this is contained within the respondent's bundle of documents which has been produced to the Tribunal."

They continued a little later: -

"As to the applicant's claim under Section 1 of the Employment Rights Act 1996, it is clear that he was, in fact, provided with a written statement of the main terms of his contract of employment and no order is, therefore, made under that head of claim."

5. The terms of contract had included the change to £3.60 an hour all in with no allowances. What the Tribunal said was that on 29 March 1999 a letter was sent by the Respondent to all its employees stating as follows: -

"As you are aware the minimum wage of £3.60 takes effect from 1 April 1999.

We are therefore informing you that with effect from that date you will receive £3.60 per hour as your fixed basic rate.

All site allowances will cease unless you are moved to another assignment which carries a higher rate of pay."

6. For minimum wage purposes the Tribunal held that it was the total that was relevant. What they said was: -

"In other words the site allowance is not a single fixed rate paid to all employees in Recognition of working on a particular site but simply a denial [sic] to bring differing base rates up to a common hourly rate for that site."

"The total hourly rate is therefore the relevant rate in considering the National Minimum Wage, and the applicant's total hourly rate for the site on which he was employed was correctly adjusted from £3.20 to £3.60 to satisfy the statutory requirement."

7. That was the decision of the Employment Tribunal.
8. On 3 November the 42 day period expired during which the Notice of Appeal had to be lodged if any appeal was to be made. On 17 November, 14 days late, the Notice of Appeal was received. In fact it was not received on 17 November; it was dated 17 November but not received until 19 November. It says that the Employment Tribunal erred on two counts "(a) accepting a definition of a site allowance which itself was erroneous (b) that notwithstanding that, they also allowed such a component of pay to be included in the method of calculating the National Minimum Wage contrary to the direction provided by the relevant legislation."
9. On 1 December a suggested reason for the delay was given for not putting in the Notice of Appeal in time Mr Yeo wrote a letter saying: -

"I am not blaming my adviser for being late with the appeal form, I miscalculated the time I had from receiving the tribunal decision to appealing. I thought I had 62 days, 20 days for obtaining the appeal form and 42 days getting the form to the appeal tribunal."

He adds: -

"I was completely ignorant of how I was expected to identify a point of law, until it was described to me"

10. In the ordinary way the Employment Appeal Tribunal office asked the Respondent, Guardrite, for their views and on 21 December Guardrite opposed any extension and on 19 January the Registrar refused any extension. On 24 January Mr Yeo indicated that he wished to appeal against that refusal. Against that chronology the position is this; the chief reason given for delay is confusion as to the time allowed for appeal. That is no good reason. The notes sent out with the Employment Tribunal decisions are very clear. A would-be Appellant has and has only 42 days from the sending out of the Tribunal's extended reasons in which to lodge a Notice of Appeal.
11. As for detecting an error of law, Mr Yeo was receiving some form of advice and there is no explanation at all in evidence of when he first sought advice and what it was and when it was given. No exceptional reason emerges for an extension of time. As for the merits of the appeal, they play only a relatively small part, generally, in considering whether there should be an extension but his claim for unlawful deduction was carefully examined and failed and there is no discernible error of law that emerges. It is certainly not a case where a refusal of an extension of time denies to a party what would otherwise be an obviously successfully appeal. I guide myself by reference to the familiar cases of Abdelghafar as recently upheld in the Court of Appeal in Aziz –v- Bethnal Green and on doing so I find there here to be no exceptional reason shown in evidence, indeed there is no evidence at all. Insofar as the merits have a role in the matter, they do not assist Mr Yeo to obtain an extension of time. I see no reason to upset the Registrar's decision of the 19 January and, exercising the discretion afresh as I must, I see no good reason to extend time and therefore dismiss the appeal.