United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondents	MR JONATHON ASHWORTH (of Counsel) Instructed By: SBJ Employment & Safety Services Ltd 4 Copthall House Station Square Coventry CV1 2FL


 


MR JUSTICE CHARLES:

1. I have before me an appeal from an Order of the Registrar dated 29 June 2000. As I read it that was an Order refusing an extension of time to appeal in respect of two proposed appeals against decisions entered on 17 and 27 March 2000. Those were decisions of an Employment Tribunal sitting at Leicester. The second decision was a refusal of an application for a review of the first decision.
2. The Appellant is a Mr Pandya and the Respondent is a company called Headcount Field Marketing Ltd. The relevant timetable, apart from the dates I have already given, is that the Notice of Appeal was dated 7 May 2000 and was received 11 days out of time in respect of the first decision but only one day out of time in respect of the second one.
3. Mr Pandya is not here today. I record that today is a day of extreme travel difficulties. We received no prior notification that he was not intending to come. We have had no contact from him today and have been unable to contact him ourselves. He lives in Leicester. Having said that, the representative of the Respondent company has managed to get here and has travelled from Wakefield.
4. At the opening of the appeal I indicated that I would hear it and deal with the matter on paper but, given the circumstances I have just described, would give Mr Pandya the opportunity to apply to vary or discharge the Order and seek a further oral hearing initially on an ex parte basis. Properly, and notwithstanding no doubt the considerable efforts that the Respondent's representative has made to be here today, he did not resist such an Order.
5. Turning to the merits of the application itself, I should say firstly that it comes before me under Rule 21, having regard to the terms of that rule in my judgment this is an appropriate case for me to deal with by myself rather than referring it to a full Tribunal. Secondly, I record that the approach to be adopted by this Tribunal is that set out by Mummery J in the case of United Arab Emirates v Abdelghafar [1995] IRLR 243, that is the case referred to in the Registrar's Order and in this Tribunal's Practice Direction. The Court of Appeal in a case called Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111, have recently confirmed that this Tribunal does not err in law if it applies the Abdelghafar test.
6. In his letter to this Tribunal which is dated 20 May 2000 Mr Pandya starts by setting out a number of dates, particularly in respect of the review hearing. As I understand it that is to try and demonstrate that he was not late in respect of his appeal against the refusal to review the substantive decision. As I have already said, the calculations done by this Tribunal indicate that he was one day late.
7. The reality of the position relating to the two appeals is that the main appeal is the appeal against the substantive decision rather than the appeal against the refusal of a review.
8. Also in the letter dated 20 May Mr Pandya raises the point that originally the present Respondent was "amongst other cases" he had brought against other Respondents. It is however, clear that his case against this Respondent was dealt with separately. He goes on at that part of his letter to indicate that the Extended Reasons for the decision in the cases he had brought against other Respondents, and which were dealt with separately, were received by him on Friday 5 May. From that, as I understand it, he maintains that a reason for his delay and why he seeks an extension was that he was waiting for that decision.
9. The approach that this Tribunal adopts as demonstrated by the Abdelghafar case is one which provides that it is only in rare and exceptional cases that the time limits will be relaxed and this Tribunal looks to and requires from a party who wants to appeal but who is out of time, a full and honest explanation for the reason for non-compliance (and thus for the delay) and considers whether or not that is an adequate reason.
10. Examples are given in Abdelghafar of cases which do not provide an adequate reason. One is when somebody is waiting for a review to be heard. Although Mr Pandya sought a review that does not seem to be his reason for the delay. Rather his reason seems to be that he was waiting for judgment in the cases against the other Respondents. If anything, in my view, that is a worse explanation because he was fully aware that the case against this Respondent was proceeding separately. Also it is an explanation which raises the suspicion that if he had managed to succeed against one of the other Respondents he would not have proceeded against this one.
11. In my judgment the fact that Mr Pandya was waiting for the decision in the other case does not provide a reason which would warrant him being granted an extension of time. In this context, I note that it is apparent from the documents I have that Mr Pandya is aware of the procedures of Employment Tribunals and of this Tribunal and of his ability to apply for a review and to appeal.
12. In short, in my judgment, he has shown no adequate reason which would warrant this Tribunal exercising its discretion to grant an extension of time in respect of the two appeals that are before me today.
13. Accordingly this appeal is dismissed.
14. As I have already indicated I will direct that Mr Pandya will have leave to apply on an ex parte basis to this Tribunal within seven days of a transcript of this judgment being posted to him for leave to discharge the Order dismissing this appeal. On that occasion he will have to convince a judge siting at this Tribunal that that Order should be set aside. If he succeeds the result would be that he would then present his appeal on an inter partes basis with the Respondent company attending. Accordingly in the absence of further directions from this Tribunal the Respondent company need not attend on any application by Mr Pandya pursuant to the above mentioned leave to discharge the order dismissing this appeal because such an application would not result in an order that his appeal succeeds. The purpose of the application is only to enable Mr Pandya on a later date to present his appeal orally before this Tribunal with the Respondent company being present (if it wishes to attend).
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Costs Application

15. The issue of costs has been raised on behalf of the representative of the Respondent company, Headcount Field Marketing Ltd.
16. At this stage, as a result of his submissions, his final point was that he invites me to lay down a marker so far as costs are concerned. That, it seems to me, is the correct approach for the Respondent company to take. At this stage I will not make an Order for Costs.
17. However, if the Respondent company has to come here again to deal with this appeal and the Appellant is unsuccessful that is no doubt a matter which the judge dealing with the appeal would then bear in mind should an application for costs in respect of that hearing then be made.