United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Appellant in Person


 


JUDGE ALTMAN

1. This matter starts as an appeal from a decision of the Employment Tribunal then the Industrial Tribunal sitting at London (North) on 4 July 1996. It comes before us by way of preliminary hearing to determine whether there is a point of law, which merits consideration in full by the Employment Appeal Tribunal.
2. On that day the Industrial Tribunal dismissed the Appellant's application for unfair dismissal in his absence, the Industrial Tribunal having telephoned both the number on the Originating Application and the number furnished for the Appellant's solicitor and having received no reply. The decision was given on the merits on consideration of such evidence as there was before the Employment Tribunal.
3. On 1 October 1996 the Appellant wrote to the Industrial Tribunal talking about representation and the fact that he did not have Legal Aid. The letter is at page 12 of our bundle and it is consistent with someone who is not aware that the hearing has already taken place. On 23 October 1996 the Industrial Tribunal replied pointing out that a Notice of Hearing had been sent to the Appellants solicitors as long ago as the 29 May 1996 and that the case was heard on 4 July 1996 and sending the Appellant a copy of the decision. It appears that then on 24 January 1997 the Appellant wrote after a time gap which may or may not be capable of explanation to the Industrial Tribunal indicating that he did not have notice of the hearing and that he would like a re-trial. On 4 February 1997 the Industrial Tribunal wrote to him to ask for the case number so that they could check the situation and that was sent on 11 February 1997.
4. It appears that on 3 April 1997 the Appellant wrote to the Industrial Tribunal a letter, which was catagorised in due course by the Industrial Tribunal as an application for review. We have not seen that letter and Mr Sojirin was unable to produce it to us and we understand that the Industrial Tribunal no longer has the file in this matter. On 9 May 2000 the Regional Secretary wrote to the Registrar of the Employment Appeal Tribunal saying that the file had been destroyed apart from the two decisions.
5. There was then a review hearing dated 29 May 1997 refusing the review and the reasons given were

"the Applicant indicated that he was represented by solicitors and the Notice of Hearing was sent to them in May for a hearing in July. The facts of the case were fully considered before the decision was reached. The Industrial Tribunal was not informed that the solicitors were no longer acting until October 1996. This application is presented outside the time limit. He was sent a copy of the decision on 23 October 1996 and the application for review was not received until 1 May 1997."

6. In due course the Appellant appealed from the original decision of the 4 July 1996 and the appeals to the Employment Appeal Tribunal were not allowed because they were out of time. In due course the Appellant took the matter to the Divisional Court and the Court of Appeal. On 21 February 2000 the Court of Appeal gave judgment through Lord Justice Sedley, giving the main judgment, demonstrating that the Court of Appeal did not have jurisdiction to deal with the matter but suggesting avenues which the Appellant may take for the re-dress of his sense of injustice.

Paragraph 6 of the judgment refers to the decision of the Employment Appeal Tribunal in Hancock –v- Middleton [1982] ICR 416. Lord Justice Sedley said: -

"It is clear from that decision that it is ordinarily inappropriate for a chairman sitting alone to hold that the application for review has no real prospect of success, where the grounds given are such as here and would otherwise, as Miss Dixon accepts, have called… for a hearing under rule 11(6) rather than rule 11(5) before the whole of the original tribunal."

7. At the present time the Appellant has been ruled out of time for an appeal from the original decision and has not formally appealed the review decision although Lord Justice Sedley indicated that may well be the appropriate channel.
8. It seems to us there are a number of matters which arise. First, should the Appellant be permitted to amend his Notice of Appeal effectively to appeal the decision of 29 May 1997 refusing the application for review? Secondly, should time be extended to permit the Appellant to appeal to the Employment Appeal Tribunal and thirdly, is there an arguable point of law that the Chairman on 29 May 1997 erred in sitting alone to deal with the application for review? There is a subsidiary question in relation to that which is whether the Appellant himself was given an opportunity to address the grounds upon which the Chairman dismissed the application for review, and before the Chairman did so. There is some difficulty in dealing with that in the absence of the letter of 3 April 1997. We pose the question, did the Appellant know before 29 May 1997, that the reason for dismissing the application for review was because it was outside the time limit by about six months? Had he had an opportunity of addressing that argument and giving any explanation before that became the reason for refusal? In other words has he had an opportunity to state his case on the application for review?
9. When appeals are made to the Employment Appeal Tribunal and which are out of time a letter is written to the Appellant inviting argument as to whether time should be extended. We pose the question as to whether there is a point of law as to whether or not that process was gone through, and whether if it was not, was an error of principal in relation to a fair hearing of the review.
10. Accordingly we have decided as follows. First we give leave to the Appellant to amend his Notice of Appeal to include an appeal from the decision of 29 May 1997 of the Chairman sitting alone, refusing an application for a review. Secondly, we say that the other two matters set out above constitute arguable points of law which should be argued in full before the Employment Appeal Tribunal. We direct that the question of whether time should be extended should be taken at the outset of the hearing and if resolved in the Appellants favour the main hearing should follow immediately without the need for further listing.
11. We appreciate that this is a rather artificial course to take, bearing in mind the technical questions as to whether the current Notice of Appeal is an appropriate vehicle for an amendment such as this. Having considered the background of the matter and the judgment of Lord Justice Sedley, this seems to us the best way forward to bring this matter to some sort of conclusion.
12. The case will be listed for one day, category C. Skeleton arguments should be furnished in accordance with practice. This is clearly an exceptional case in which time limits are out of all proportion to those which are normally considered appropriate. It is clearly a case on its own particular facts without any point of principle so far as extension of time limits is concerned, but it does seem to merit further consideration. We would urge the Appellant to obtain such representation as he can for the hearing.