United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


MR JUSTICE LINDSAY (PRESIDENT)

1. I have before me an appeal against the Registrar's refusal to extend time for the lodging of a Notice of Appeal in the matter Slinn & Others -v- Premier Homes. The Appellant, Premier Homes, a firm, is not represented nor does it appear before me. We have received correspondence on paper marked "High Wray" under the signature of Mr D Bennett. Mr D Bennett seems to have been a member or partner in the firm "Premier Homes". Mr Bennett has been contacted by my clerk this morning and has indicated that he and Premier Homes do not intend to appear today and are content that the matter should be considered on the papers we have, which include some material letters on behalf of Premier Homes, written on the "High Wray" writing paper by Mr Bennett. So that is the Appellant's position; no one is here on its behalf. So far as concerns the Respondents, three individual former employees, they do not appear either but a written Skeleton Argument has been submitted on their behalf.
2. Looking at the chronology: it starts on 17 June 1999, when the 3 individuals, Miss N Slinn, Mrs S James and Mrs M E Laurie lodged IT1s claiming redundancy, unfair dismissal and wrongful dismissal against Premier Homes. When the proceedings were launched 7 individuals or partners were named as Respondents, trading as Premier Homes.
3. On 23 July 1999 the employer asserted that the nursing home at which the Applicants had worked had closed and that they had been offered suitable alternative employment but had declined it and had thereby lost rights to redundancy payments or otherwise. On 11 January of this year there was a hearing at the Tribunal at Liverpool under the Chairmanship of Mr D Reed. By then the individuals named as consisting of Premier Homes had been reduced to 5 in number: Mr Bennett, Mrs L Bennett, Mr P Hoyles, Mrs P Hoyles and Mrs C Toor.
4. On 16 February the Tribunal's decision was sent to the parties and it was as follows:-

"The unanimous decision of the Tribunal is that:

(i) the applicants are entitled to the following redundancy payments:"

and then there are sums awarded to Mrs James, Mrs Laurie and Miss Slinn, and

(ii) the respondents breached the contracts of the applicants by failing to give notices of dismissal and the applicants are awarded damages in the following sums:"

and then there are sums awarded respectively to Mrs James, Mrs Laurie and Miss Slinn.

5. On 28 March, so far as one can tell from looking at it, a date was appended to a Notice of Appeal and to a covering letter. On 29 March 6 weeks expired from the date on which the decision of the Tribunal had been sent to the parties; that is the 6 weeks or 42 days prescribed by regulation. At that time a Notice of Appeal had not been received by the Employment Appeal Tribunal .
6. On 4 April the Notice of Appeal was received by the Employment Appeal Tribunal - 6 days late. On 10 April the Employment Appeal Tribunal asked whether an application for time to be extended was made by Premier Homes, but no answer was received to that question. On 5 May the EAT wrote again; they said:-

"I refer to the above matter"

and that was just a reference to the name of the case

"and my letter of 10 April 2000 to which there has been no response.

If it is your intention to pursue the appeal you must let me have your application for an extension of time in which to enter the Notice of Appeal.

You should reply within 7 days of the date of this letter, failure to do so may result in the appeal being struck out"

7. This did generate an answer because on the 9 May the EAT received one of the letters on "High Wray" paper, signed by Mr Bennett, which he wishes me to have in mind in making this decision. The letter said, inter alia, written by Mr Bennett:-

"As I explained in today's telephone conversation the senior partner Mr J A Hoyles who has been overseeing this case is currently on the Heart bypass waiting list. His health has been affected by a deterioration in this condition the necessary controlling medication causing unpleasant side effects. This resulted in the appeal documentation arriving with yourselves slightly out of time. One would add that stressful nature of these matters does not help such a condition."

8. As is the usual practice of the EAT it then, on 10 May, asked the Applicants, who had won below, what was their response to an application for an extension of time and, after a reminder on 31 May, the Respondents' representative -Sefton Employment Rights Unit - wrote as follows:-

"Clearly the appellant's letter of 8 May does not meet those matters set out in paragraph 3 of the Practice Direction.

In particular

a. The letter states Mr J Hoyles 'has been overseeing this case'. However, it was a Mr Bennett (another partner in the firm) who attended the Employment Tribunal hearing on behalf of the appellant. All negotiations were dealt with through Mr Bennett, as I recall. Indeed, the letter of 8 May is from Mr Bennett.

b. It is not stated whether Mr Hoyles was ill for the whole of the period of 42 days in which the appeal could have been entered.

c. It can be inferred part of the appellant's reason/s for their late appeal was the 'stressful nature of these matters' stated in the above letter. It is submitted this can not reasonably be a relevant matter to allowing a late appeal."

9. On 12 June the employers answered that - and this is the second of the letters which Mr Bennett asked my clerk to ensure was put in front of me for my consideration. It is a letter from Mr Bennett on the "High Wray" paper and it says inter alia:-

"In reply to the respondents letter of 31^st May 2000 and in the same format we counter:

a) Mr J A Hoyles is the senior partner, and has personally conducted this case from moving into Osborne House to oversee the closure and dealing with all staff related matters including the writing of memos and letters that constitute part of the evidence we wish to be considered at appeal, to this present moment. Mr Bennett has only taken instructions dealing with aspects that Mr Hoyles was unable to undertake due to the previously mentioned health problems.

b) Mr Hoyles has been ill for the whole period covering the 42 days mentioned. By its nature heart decease is a prolonged and progressive problem.

c) We quite agree that stress is not a submissable reason, the comment should be taken in the context of the whole letter.

Mr Hoyles is to receive a triple heart bypass operation on Monday 19^th June 2000 Medical evidence can of course be supplied to support this. His health has been a crucial factor in the process to appeal, and for this reason we request that the appeal be heard."

10. On 30 June the Registrar made her Order which includes the following:-

"AND UPON CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS

IT IS CONSIDERED that there has been shown no exceptional or acceptable reasons why Mr Bennett who represented the Appellant below could not have presented the notice of appeal within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993.

AND IT IS ORDERED that the application for an extension of time in which to present the notice of appeal is refused."

11. On 7 July an appeal against the Registrar's Order was received and on 7 November a Skeleton Argument or written argument on behalf of the individual applicants was received, which says, inter alia, this:-

"2. In support of this decision, it should be noted that Mr Bennett has continuously represented the Appellant throughout the Employment Tribunal, and the Employment Appeal Tribunal proceedings to date.

3. The Sefton Employment Rights Unit has already submitted on 31 May 2000 ……..that it was not Mr Hoyles (a partner of Mr Bennett), but Mr Bennett who represented the Appellant's at the Employment Tribunal, and that all negotiations were dealt with through Mr Bennett, plus the Appellants letter of 8 May 2000 to the EAT is from Mr Bennett."

12. So far as one can tell the employer's IT3 was signed by Mr Bennett, one of the 5 individuals who, in the title to the proceedings, emerged as comprising Premier Homes. It was Mr Bennett who appeared as or for Premier Homes at the Employment Tribunal hearing. It would seem to me that Mr Bennett had signed the Notice of Appeal and the accompanying letter of 28 March, received by the EAT on 4 April; it was Mr Bennett who wrote the letter of 8 May received on 9 May by the EAT and that of 12 June.
13. There is no sufficient reason to believe that only Mr J A Hoyles alone was dealing with case or that he alone could deal with the case, on the employer's behalf, or that the Respondent partnership or firm was so deficient in personnel or resources that it was unable, on Mr Hoyles being ill, to find an alternative to him in good enough time, even had he been entrusted initially with the conduct of the case. Whilst we would ordinarily be sympathetic when health grounds are raised, there is here no sufficient link demonstrated between the health of Mr J Hoyles on the one hand, and lateness of the Notice of Appeal on the other. I have in mind not only the Abdelghafar case referred to in the Registrar's Order, but the later case of Aziz -v- Bethnal Green in the Court of Appeal. In that case, the appellant sought to criticise the strict approach of the Employment Appeal Tribunal to time in relation to Notices of Appeal by saying that the Employment Appeal Tribunal was stricter as to time than was the Court of Appeal with its own rules, and that it was not correct that that should be permitted to be the case. However, in the Aziz case the Court of Appeal did in no way disapprove the relatively strict line consistently taken by the Employment Appeal Tribunal in such cases, and there are, indeed, many such cases where appeals have received no extension of time even where the lateness has been much shorter than the period in this case. No good reason has been shown for the delay in the presentation of the Notice of Appeal. I must dismiss the appeal; there is to be no extension of time.