United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DANIEL MATORN Counsel Messrs Over Taylor Biggs Solicitors 1 Oak Tree Place Manaton Close Matford Business Park EXETER EX2 8WA


 


JUDGE PETER CLARK:

1. On the 10 July 2000, the Applicant, Mrs Preston present an originating application to the Reading Employment Tribunal complaining of unfair dismissal on the part of the Respondent, Mrs Bedwell, at the dental practice at which she was employed from 5 October 1998 until 13 June 2000, when the Applicant resigned in circumstances which she contends amount to constructive dismissal. The Applicant also complained of sex discrimination – that complaint relates to her alleged treatment by the Respondent during her employment due to her pregnancy.
2. It seems that the Respondent received the application on 17 July. On the 24 July she wrote to the Tribunal explaining that she had legal expenses insurance and would be obtaining legal representation. Meanwhile, she had been advised not complete the form IT3, but said that she would return that form as soon as possible. There was some delay at the insurer's office due to holidays and on Friday 11 August Mr Over, an experienced solicitor, received instructions to act for the Respondent. Mr Over was away until the morning of Tuesday 15 August from his office. He saw the instructions and faxed a letter to the Tribunal on the next day, the 16 August asking for a 7-day extension to serve the form IT3.
3. Rule 3(1) of the Employment Tribunal Rules of Procedure provides that a Respondent must, within 21 days of receiving the copy of the originating application, enter a notice of appearance setting out certain particulars. In this case, the form IT1 was received on 17 July and the relevant period had elapsed before Mr Over faxed the Tribunal. However, a Respondent is permitted to apply for an extension of time under Rule 15, even though the relevant time limit has expired. Where a Chairman grants an extension of time under Rule 15, if he finds that it was reasonably practicable to enter the appearance with time, he may make a costs order against the Respondent under Rule 12. See Rule 3(4).
4. On the 18 August the Chairman Mr J R Hardwick, declined to deal with the application for extension of time, or if he did he refused it, by directing that the originating application should proceed on the basis of appearance not entered. As such, the Respondent would be barred from defending the claim on its merits. See Rule 3(2). On 22 August, Mr Over wrote to the Tribunal enclosing a Notice of Appearance resisting the claims and renewing his request for an extension. He submitted that no prejudice had been caused to the Applicant. That letter was followed up by a reminder dated 13 September. On 15 September, the Chairman directed that the case be set down for a Directions hearing to determine whether the Notice of Appearance should be validated.
5. That hearing took place on 21 September before the same Chairman. By an order with reasons promulgated on the 2 October the Chairman refused to extend time for entry of the form IT3 and ordered the Respondent to pay the Applicant's costs in the sum of £423 including VAT. Against the refusal to extend time, this appeal is now brought. There is an additional ground of appeal against the costs order on which we shall hear Mr Matorn shortly. In reaching his conclusion, the Chairman has in mind the guidance given by Mummery J. in Kwik Save Stores Limited v Swain (1997) ICR 49, namely that in exercising his wide discretion to allow or refuse an extension of time for entering an appearance, the Chairman should take into account all relevant factors including the explanation or lack of explanation for the delay and the merits of the defence, balancing the prejudice to both parties, in reaching his conclusion.
6. In this case the Chairman found that: -

1) The reasons for delay were unacceptable. First, the failure of the insurers to instruct solicitors until 11 August, being one week after the deadline for entering the appearance, and then a delay in contacting the Tribunal. He found that the Respondent was on holiday from 14 – 18 August, but she could have been contacted during the 3 days from Tuesday 11 August, especially since the matter was urgent.

2) Looking at the merits of the defence there was little factual dispute. The only one being whether the complaints about the Applicant's performance started before or after she announced that she was pregnant.

3) Having regard to all relevant factors, including the prejudice to the Applicant, the applicant should be dismissed.

7. In considering whether this appeal raises any arguable point of law, we bear in mind: -

a) The wide discretion granted to the Tribunal Chairman and

b) The draconian step of effectively debarring a Respondent from the claims made against her in the light of Article 6 of the ECHR.

8. It seems to us that the appeal is arguable in the following circumstances: -

1) There is no indication that the Chairman found any prejudice to the Applicant.

2) In finding that the delay was unacceptable he took into account factors in respect of which he was mistaken namely as Mr Matorn points out in an amended ground of appeal that the notice of appearance was due on the 4 August not 7 August and further, that the 11 August was a Friday not a Tuesday.

3) Perusal of the defence suggests a far greater factual dispute than is allowed for in the Chairman's reasons and we bear in mind that in a case such as this where the allegations are of constructive dismissal and unlawful sex discrimination, the impression which the principle protagonists make on the Tribunal may be very important in arriving at their eventual conclusions.

9. In these circumstances, we consider that the appeal against the refusal to extend time should proceed to a full hearing. Having heard Mr Matorn's submissions on the costs part of the appeal, we are not persuaded that any arguable point of law is here raised. The Chairman found, as he was entitled to do, that there was no adequate explanation from the insurers for not instructing solicitors until the 11 August. We accept that that is not a full week after the deadline as Mr Matorn points out in his amended grounds of appeal, but it is correct to say that the papers were not forwarded to the solicitors until after the 21 day period had expired. In these circumstances, we think that it was open to the Chairman to find that it was reasonably practicable for the notice of appearance to be entered within the 21 days. In these circumstances, he was entitled to conclude under the provisions of Rule 3(4) that it was appropriate to order costs in line with the requirements of Rule 12.
10. As to the amount of the costs, we can only surmise from the precise figure that that was the bill presented by Miss Shaw, the solicitor who appeared on behalf of the Applicant before the Chairman on the 21 September. In these circumstances, we shall dismiss that part of the appeal at this preliminary hearing stage. As to directions for the full hearing, we shall grant permission to the Appellant to amend her Notice of Appeal to add grounds 6(10) and 6(11) submitted to us today by Mr. Matorn. The case will be listed for half a day Category C. There will be an exchange of skeleton arguments not less than 14 days before the date fixed for the full appeal hearing. There are no further directions.