United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS CATHERINE CALLAGHAN (of Counsel) Instructed by: Messrs Field Fisher Waterhouse Solicitors 35 Vine Street London EC3N 2AA
For the Respondent	MR STEWART PULLEN Trade Director


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have an appeal by Miss Catherine Wei in the matter Wei-v-Eurofax International Ltd. Miss Wei appeals against the Registrar's refusal to extend time for the lodging of a Notice of Appeal. Before me today I have heard Ms Callaghan on behalf of Miss Wei and Mr Pullen, the Trade Director of the company, a man who asserts he has no legal qualification.
2. In August 1998 Miss Wei was taken on, or was already working for, the Eurofax company in Taiwan. She was engaged on some basis that included, apparently, entitlement to commission in certain events. The contract is not formally before me and certainly was not before the Tribunal below, at any rate in any detail.
3. On 5 August of last year the company, as it seems, made a contract with a Taiwanese company which seems to have led to a claim by Miss Wei for commission in relation to the negotiating or contracting with that company.
4. On 25 October of last year, section 196 of the Employment Rights Act was repealed. The repeal had been provided for by statute earlier to come in at a later date, and 25 October 1999 was the date on which the repeal took effect. Subsection 1 of section 196 had said:

"(1) Sections 1 to 7 and sections 86 to 91 do not apply in relation to employment during any period when the employee is engaged in work wholly or mainly outside Great Britain unless…"

and then there are exceptional cases which I need not go into.

5. In January of this year Miss Wei came to this country, by no means for the first time: she is an intelligent woman, well able to understand and speak English and had been here on a number of occasions and for quite long periods previously. She claimed commission generated by the contract that had been made with the Taiwanese company. On 3 March the company responded to her claim by saying this:

"You are not entitled to the commission payment you refer to in the letter"

That letter is before me and, continuing with a quote from it:-

"All remuneration that was due to you has already been paid in full"

"With regard to an Employment Tribunal this claim would not be considered because it relates to a contract where you were working outside the UK and is therefore excluded under Section 196(2) of the Employment Rights Act 1996."

I should also have read subsection 2 of 196 which says:

"(2) The provisions to which this subsection applies do not apply to employment where under the employee's contract of employment he ordinarily works outside Great Britain."

6. Undeterred by that reference to the statute in the Company's letter, on 8 April Miss Wei launched an IT1 claiming unauthorised deduction of wages. She gave an address in Taipei. She was then back in Taiwan. She named no United Kingdom representative, or, indeed, any representative as acting for her. She had by then resigned from the company but claimed that she had been refused commission that was owing to her.
7. On 28 April the company put in its IT3 and reiterated that her claim was excluded under Section 196(2) of the Employment Rights Act 1996. Her claim, said the company, was for a period when she was working outside Great Britain.
8. On 31 May the matter came before the Chairman alone. She, Miss Wei, neither appeared or was represented and the company appeared, as it has done today, by Mr Pullen who, having received advice about Section 196(2), doubtless drew it to the Chairman's attention. On 6 June the decision was sent to the parties. It was:

"The decision of the Tribunal is that the Respondent pay the sum of £100 to the Applicant".

The £100 was, held the Chairman, the most that could have been owed to Miss Wei as commission in respect of any work in Great Britain. The Chairman records that the company agreed with that proposition, but the rest of her claim, it was ruled, related to work outside the United Kingdom, outside Great Britain, in Taiwan and was barred by Section 196(2). The Chairman says her contract was as to working in Taiwan and therefore, under Section 196, of the Employment Rights Act, he said, she could not bring proceedings under Part 2 of the Employment Rights Act in an Employment Tribunal in this country.

9. Well, of course, the sending out of the decision to the parties on 6 June set time for an appeal running and the six weeks expired on 18 July. On 28 July, hence 10 days late, a Notice of Appeal was received at the Employment Appeal Tribunal and it raises this point at paragraph  6.

"6 The grounds upon which this appeal is brought are that the employment tribunal erred in law in that:

Repeal of Section 196 of the Employment Rights Act 1996

(1) The Employment Tribunal wrongly applied Section 196 of the Employment Rights Act 1996; Section 196 of the Employment Rights Act 1996 was appealed (and should therefore have had no relevance to the matters before the Tribunal) by Sections 32(3), 44 and Schedule 9(9) Employment Relations Act 1999, as from October 1999, pursuant to paragraph 2 of the Employment Relations Act 1999 (Commencement No. 2 and Transitional and Saving Provisions) Order 1999, in respect of the right not to suffer unauthorised deductions from wages under Part II of the Employment Rights Act 1996".

One only has to read that to recognise how convoluted modern legislation sometimes is and how difficult it would be likely to be for someone, either within England or without, to trace modern legislation and its current effect.

10. In a letter accompanying the Notice of Appeal Miss Wei, now in the hands of English solicitors, asked for an extension of time. One of the grounds then advanced was this:

"Our client is unaccustomed with the procedures of the Employment Tribunal in this country, and understood the Tribunal's decision to be final. Further, she did not know that the law had changed, and did not question the Tribunal's application of the law."

Having received what amounted to an application for an extension of time, the Employment Appeal Tribunal, as is its practice, then consulted the Respondent and on 31 July asked Eurofax for its observations and on 10 August Eurofax indicated that it opposed an extension: it asserted that Miss Wei was a highly intelligent woman, well able to deal with the English language. It was I think, Mr Pullen's letter; it was thoroughly well reasoned and set out, and in it he says:

"We assert that someone of Catherine's intelligence and experience, who had attained an MSc from a respected English University, who has a wealth of business experience, who had set up a branch office in Hong Kong for a previous employer and run our own branch office in Taiwan, would be able to understand the principles of a UK Industrial Tribunal (or at the very least be able to seek advice from an organisation that did), and more particularly would easily be able to read and understand the Notes of Tribunal Decisions document that accompanied the Tribunal's decision"

and that is a reference to the notes that go out with a Decision that indicate that if one wishes to appeal then the appeal is to be directed to the Employment Appeal Tribunal and which also set out the 42-day period for an appeal.

11. On 25 August Miss Wei's solicitors answered, slightly perhaps changing the tone of the matter, by saying this in their letter of 25 August:

"When our client, Miss Catherine Wei, received notice of the Tribunal's decision in Taiwan on 10 June 2000 she was aware of the time limit which she had to serve notice of appeal. It is not the case, as the Respondents suggest, that she did not bother to read the documents sent to her by the Tribunal accompanying its decision. However, because of the nature of the Tribunal's decision, our client did not consider that she had any legal grounds upon which to appeal against it. The Tribunal had declined to hear her application on jurisdictional grounds. The Tribunal had not considered the merits of her application. In reaching its decision the Tribunal had relied upon UK legislation, which on its face appeared to be valid and in force, Miss Wei could not reasonably be expected to know or indeed suspect that this legislation had in fact been repealed. We submit that the situation would have been rather different if the Tribunal had relied upon case law in reaching its decision."

Well, by then therefore the argument at that stage was concluded and on 31 August the Registrar made her Order, and it said inter alia:

"AND UPON DUE CONSIDERATION of paragraph 3(1) of the Practice Direction (Employment Appeal Tribunal - Procedure) where it is clearly the responsibility of the Appellant to ensure that an appeal is submitted to the Employment Appeal Tribunal within 42 days.

AND UPON FURTHER CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS with special attention paid to 71C "there is no excuse, even in the case of an unrepresented party, for the ignorance of time limit".

IT IS CONSIDERED that there has been shown no exceptional reason why an appeal could not have been presented 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."

12. On 5 September Miss Wei's solicitors appealed against that refusal to extend. More recently, the Chairman of the Employment Tribunal has indicated a willingness to consider a review of his decision on the grounds that the interests of justice require that it be looked into, and on that basis Miss Wei's solicitors first sought an adjournment of the matter that has now come before me today. It was opposed by Eurofax and on 10 October the Registrar declined to grant an adjournment, saying that application for adjournment could be made at the hearing today. Miss  Wei's solicitors then repeated their request for an adjournment and, the matter having been referred to me at five fifteen on Monday 16^th and the objections of Eurofax having been indicated still to be applicable, I declined the request for an adjournment with an indication that an application for an adjournment could be made today, if it was thought fit.
13. The fact that a review of an Employment Tribunal decision sought to be appealed against make take place does not, of itself, obviate the need for an application for an extension of time to be expeditiously pursued. If the review is, in fact, promptly granted the fresh decision that emerges will be subject to a fresh timetable for appeal and will be likely to render an appeal against the former decision nugatory and hence be likely also to render nugatory an application for an extension of time in which to lodge such an appeal. But if the application for the review is adjourned, or if a distant date is fixed for it, or so that, for example, the original panel of the Employment Tribunal could be reconstituted, or something on those lines (not applicable here but not uncommon) it may be some time before the outcome of an application for a review is known, and, of course, if the review is ultimately declined, the application for an extension of time would still have to be made if the appeal is, after the declining of the review, still intended to be proceeded with.
14. Miss Wei's solicitors feel, with some justice, that her case under Section 196(2) and its repeal is so strong that really it is almost open and shut. But it by no means follows that on a review the Employment Tribunal will change its decision as opposed, perhaps, to changing the reasons for its decision; for example, it may be that, if the contract which generated the commission led to the commission being payable before the repeal of the statute, well then, that would be a material consideration which would no doubt weight against Miss Wei. Ms Callaghan says that is not the case, or is not shown not to be the case, and, of course, I have not needed to go into the facts at this stage, but that is a possibility, and it will need to be looked into.
15. Another possibility (and, again, it is one that Ms Callaghan says that when the facts were investigated, will be found to have no substance) is that commission became payable to Miss Wei so early that her claim is out of time under Employment Rights Act Section 23 Subsection 2 but that arguably, there should be no extension under Section 23(4). Again, that is a matter not before me; it is a possibility which Ms Callaghan says will not arise, but it is a matter that will no doubt have to be considered. And even if the deduction from wages was made after the repeal of Section 196 Subsection 2, it does not follow that English law regulates the question, or English law alone regulates the question, and the Employment Tribunal will no doubt have to consider, as Harvey points out at B57.01:-

"Such matters must now be left to conflict of law principles"

Again, Ms Callaghan will be willing to argue that the 'conflict of law principles' provide no difficulty in Miss Wei's case, but it is a matter which will need to be considered.

16. At all events, as such possibilities seemed to me to be capable of existing, and, given the closeness in time between the application to me for an adjournment (which was late on Monday afternoon) and the date fixed for the hearing, namely 10.30 this morning, 18 October, and given also the opposition to the adjournment from the Respondents, I saw fit not to accede to the application for an adjournment on 16 October.
17. Today there has been little discussion of the application for an adjournment: it was touched on, but not greatly pursued, because it was quite plain that the parties were willing and able to go ahead on the merits of the case in any event. I have been told this morning that recently, even more recently than I have so far indicated, the Chairman or the Employment Tribunal has fixed a review hearing for early next year, 12 January 2001.
18. Well I have, as I have indicated, heard the application for an extension of time on the merits. I ought first, briefly, to refer to a point made in Miss Wei's solicitors' letter of 5 September. They say:

"We consider that the Registrar relied upon the wrong reasons in rejecting our application. The Order refers to United Arab Emirates v Abdelghafar and states that "special consideration" has been given to paragraph 71C of this Judgment, which states "there is no excuse….. for the ignorance of time limits". We would like to refer the President to the third paragraph in our letter to the Registrar dated 25 August 2000, in which we state that we do not rely on ignorance of time limits as a factor in our application. Indeed we accept that our client was aware of the relevant time limit for service of notice of appeal (paragraph four)."

Well, that argument rather overlooks that on 28 July Miss Wei's solicitors had, as I have indicated, said that:

"Our client is unaccustomed with the procedures of the Employment Tribunal in this country, and understood the Tribunal's decision to be final".

And it could well be that it was that passage in the communication of the 28 July that caused the Registrar to cite the particular passage which she did from United Arab Emirates v Abdelghafar.

19. However, leaving that aside, there are plainly powerful arguments in Miss Wei's favour; on the face of things, the Employment Tribunal's decision was based on a statutory provision that no longer existed at the time of the hearing and where its repeal was not noticed and where there was no reason to exclude the effect or relevance of the repeal, at any rate none that was demonstrated to or mentioned by the Tribunal. Miss Wei was, throughout the 42-day period allowed for Notices of Appeal, abroad, where she might reasonably expect not to be able to get local advice on such a technical English subject. The Employment Tribunal's decision was purely one of law, going to jurisdiction, and the Employment Tribunal's decision appeared to confirm what Miss Wei's opponents had said, because they had actually drawn her attention to Section 196, and she could not reasonably be expected to know, or to be advised locally, that the law asserted by her opponents and upheld by the Tribunal no longer existed.
20. The prejudice that the company might suffer, apart, of course, from the inevitable prejudice of having to meet a claim that otherwise would not need to be met - and I think this is the only prejudice which is asserted - is shown in Mr Pullen's admirable letter of 10 August. It says:

"From the date of Catherine's original Application to an Employment Tribunal on the 10^th April until the hearing on the 31^st May and then, following the decision in our favour, until the expiry of the appeal period on the 18^th July we have had to responsibly make provisions to pay the disputed amount of US$4500 (around £3000). Having passed the expiry date we have reasonably used the £3000 in pursuance of our business. If an extension is granted we will have to again try and provide for a potential payment which will severely adversely affect our business. As noted by Mr Justice Mummery in section (3), paragraph 7 of the United Arab Emirates v Abdelghafar. case we have an expectation in the certainty and finality of legal proceedings."

But the gap between the expiry of the 42 days on 18 July and the company's receipt of the Notice of Appeal on or about 1 August is very short. Thereafter the company would have known that Miss Wei's appeal might come on to be heard and that therefore the company would have been at risk if it had gone ahead and spent the £3000 as if no sum could ever become owing to Miss Wei. I have no indication that the £3000 was thus spent in that short interval between 18 July and 1 August. Ms Callaghan urges too, as a material factor - and it plainly is - that the effect of a decision going as to jurisdiction in the way that this one did has denied Miss Wei a hearing on the merits.

21. These factors together seem to me quite exceptional, especially the consideration of the decision having been based on a question of jurisdiction and yet based also on a section that had been repealed. I shall not rehearse the considerations in Abdelghafar; they are familiar in this area, nor even to refer further to Aziz –v- Bethnal Green, where the relatively strong line taken in the Employment Appeal Tribunal was upheld by the Court of Appeal. I have those cases in mind but I do not see either of them as disabling me from dealing with what I do regard as exceptional circumstances and by responding to those exceptional circumstances by extending time for the Notice of Appeal to 28 July.
22. Mr Pullen fears that I shall be setting an awkward precedent and a dangerous one to relax the ordinary practice of the Employment Appeal Tribunal by extending time in this case but I am bound to say that the nature of the error of the Employment Tribunal (if such it is) in this case is, happily, seldom encountered and this is very much a jurisdiction (the extension of time) where the facts of each individual case have to be borne in mind. I do not see myself setting a precedent of any dangerous nature at all.
23. Accordingly, feeling able to extend time in the way that I have indicated, I allow the appeal; I extend time for the lodging of the Notice of Appeal to the 28 July and I will now ask Ms Callaghan and Mr Pullen to address me on whether I ought to stay further conduct of the appeal pending the outcome of the review in January.
24. Miss Callaghan, I will stay further proceedings in the appeal pending further Order. The further Order can be sought on not less than two clear days notice by either side, either before or after the outcome of the review is known. However (not as a matter of order but as a matter of common sense) in the ordinary way, unless there are delays becoming apparent in the review process, I would expect the stay to last until the review decision is clear. But the form of Order does permit either side to apply earlier if some new reason has emerged.