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 Abbotsound Ltd in the matter of Mr B Tracey –v- Abbotsound Ltd. Abbotsound appeals against the Registrar's refusal to admit its Notice of Appeal out of time.
2. On 24 June 1999 Mr Tracey lodged an IT1 claiming non-payment of holiday pay and unfair dismissal against a Mr L Hampson, a director of Abbotsound. There was a hearing on 5 October 1999 before the Tribunal and no one appeared on behalf of Mr Hampson or Abbotsound. On 20 October 1999 the decision of the Tribunal was sent to the parties. Abbotsound (by then the only respondent, as I shall explain) won some points but was held to be in breach of contract and had to pay £566.78 holiday pay to Mr Tracey and also £750 in respect of a difference in pay. It seems that Mr Tracey had been paid less than two women doing equal work and that his claims had been expanded to include that sort of claim.

The Tribunal in their extended reasons said: -

"At the time fixed for the hearing the applicant appeared in person and no-one appeared on behalf of the respondent. The applicant gave evidence to us on oath. We found the applicant to be a clear, honest and truthful witness and we accepted his evidence of fact. We find the following facts."

In their paragraph 9 they said: -

"On the basis of those facts we conclude that the applicant was employed by a limited company called Abbotsound Limited and we give the applicant leave to amend so as to substitute that company for Mr Hampson as respondent. We then considered whether we should direct that proceedings should be re-served upon the company. It is clear from Mr Hampson's faxed letter that he had received the proceedings. We find he was the most senior director of the respondent company Abbotsound Limited and we find that he was active in its management at all stages of the applicant's employment."

A little later they say: -

"We have come to the conclusion that we should therefore allow the applicant to make this amendment without re-service. We accept that Mr Hampson as director had notice of these proceedings on behalf of the limited company."

3. On 27 November, as it would seem from the date written onto a Notice of Appeal, Abbotsound prepared a Notice of Appeal. On 1 December 1999 the 42 day period from the decision been sent out on 20 October expired. It was not until the 7 December that Abbotsound's Notice of Appeal was received by the Employment Appeal Tribunal. Abbotsound wished to raise the point of that

"they never employed Mr Tracey and therefore were the wrong respondents."

4. On 21 December Abbotsound asked for an extension of time for lodging of Notice of Appeal. Mr Hampson wrote as follows: -

"I signed the original form on the 7 December which was well within your time scale allowed. I cannot understand why it took so long to reach your office. You mentioned that the amount paid for stamps was insufficient on that envelope perhaps that had a bearing on the delay."

5. In fact 7 December was, of course, already out of time. It may be that reference was simply a mistake. On 14 January Mr Tracey opposed the extension sought. On 24 February the extension was refused by the Registrar and on 25 February Abbotsound appealed, claiming as follows: -

"The necessary paperwork was completed, put in an envelope and put with all the other mail which was then taken to the Post Office, as is our normal practice. The Post Office staff stamp the mail and give us a postage bill which we then pay.

Our appeal was posted before the deadline but it would appear, based on what you have told us, there was insufficient postage on it, (a shortfall of 35p) which we both assume was the reason for the delay.

I feel for us to be denied our opportunity to appeal because of this would be, to say the least, harsh."

6. The Notice of Appeal was six days late. There is no explanation at all of the delay between the decision being sent to the parties on 20 October and 27 November when, according to the date written on it, the Notice of Appeal was signed on behalf of Abbotsound. Abbotsound has asserted itself that it sent the Notice of Appeal on 7 December. Even if that is a mistake, there has been no explanation put in evidence either of that not being the case or of its being a mistake. No Affidavit as to the posting or posting practice of the company Abbotsound has been lodged. There is, strictly speaking, no evidence at all of a posting within the 42 day period such as would have been likely to have led to an arrival of the Notice of Appeal before the expiry of the 42 day period.
7. On the merits of the prospective attempted appeal - the point that Abbotsound never employed Mr Tracey and therefore were the wrong Respondents - was very clearly dealt with by the Tribunal. It is largely a matter of fact for the Tribunal rather than one of law for the Employment Appeal Tribunal. Moreover, this is not a case where one can describe the Notice of Appeal as one having any obvious prospect of success. The passage that I have already cited included that on the basis of the facts found the Tribunal said: -

"We conclude that the applicant was employed by a Limited company called Abbotsound."

8. It seems to me the Registrar was right when she refused an extension of time on 24 February and no exceptional reason has been given in evidence to the contrary; indeed nothing at all is given in evidence and Abbotsound have not made argument in front of me orally today.
9. Exercising the discretion afresh it seems to me that, having regard to the well known cases of Abdelghafar as recently upheld in the Court of Appeal in Aziz –v- Bethnal Green, there is here no exceptional reason demonstrated such that the lateness should be excused and, having regard also to the merits in the way that I have touched on them, it seems to me that this is not an appropriate case for an extension of time and I dismiss the appeal.