United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DOUGHTY (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK

1. This is an appeal by the Respondent before the Southampton Employment Tribunal chairman, Mr I A Edwards, sitting alone on 30^th March 2001, described as Cybernet Tech Limited, against that chairman's decision, promulgated with Extended Reasons on 2^nd April 2001, upholding the Applicant, Mr Craig's complaint of unfair dismissal, and awarding him a basic award of £230 and a compensatory award of £11,634.80, following the chairman's initial order dismissing the Respondent's application for an extension of time for entering an appearance.
2. The background is as follows. By an Originating Application presented to the Employment Tribunal on 22^nd November 2000 the Applicant complained of unfair dismissal by the Respondent. He contended that he had been employed by the Respondent from 3^rd November 1998 until his dismissal on 30^th August 2000. The Respondent did not enter a Notice of Appearance. The case was listed for a hearing on 30^th March by a notice to the parties dated 12^th February 2001, marked appearance not entered.
3. By a letter dated 13^th March 2001, Mr David Bridgewater wrote to the Employment Tribunal claiming that he had only just received the application notice due to the fact that he had not been living at the address to which notices were sent, 19 Kemp Road, Winton, Bournemouth, following the break-up of his marriage. He gave a postal address for service. He also set out various allegations of misconduct by the Appellant justifying his dismissal. He stated that the Respondent was not a limited company, but a trading name for himself as a sole trader. He applied for an extension of time for entering an appearance.
4. It would appear that that letter was received by the Tribunal on 26^th March 2001, and on 28^th March, the Tribunal wrote to Mr Bridgewater, to the address which he gave, informing him that a chairman, Mr S Scott, had directed that the hearing, already fixed for 30^th March, would be converted to a Directions Hearing to consider the Respondent's application to file a Notice of Appearance out of time. That hearing was to take place at 9.15am, on 30^th March, at Southampton before a chairman sitting alone.
5. On the 30^th March, the Applicant appeared before Mr Edwards, the Respondent did not. The chairman dismissed the Respondent's application for an extension of time for entering an appearance and then proceeded to hear the case, accepted the Applicant's evidence and made the substantive orders referred to earlier in this judgment.
6. On 23^rd April 2001, without having applied for a review of the chairman's interlocutory order or a review of the substantive decision, the Respondent entered a Notice of Appeal against that decision both to refuse to grant an extension of time and to uphold the substantive complaint brought by the Applicant.
7. On 5^th June, Mr Bridgewater filed a Declaration with the Employment Appeal Tribunal stating that he was the sole proprietor of Cybernet Tech, there being no limited company Cybernet Tech Limited, whilst attaching a draft Notice of Appearance giving the full name of the Respondent as Cybernet Tech Ltd. He stated that he believed the form ET1 was sent to 19 Kemp Road in November 2000, but the company had ceased to trade since then. He had gone to live in a caravan. His wife remained at 19 Kemp Road but was not forwarding mail to him.
8. On 17^th July 2001, the Applicant made a Declaration contending that Mr Bridgewater had been living at the 19 Kemp Road address during, and since, November 2000 and was simply seeking to evade his responsibilities. The allegations of misconduct, made originally in Mr Bridgewater's letter of 13^th March, were denied.
9. Mr Bridgewater has now responded to the Applicant's Declaration by a further Declaration, dated 15^th November 2001, in which he gives an explanation for his failure to attend the hearing on 30^th March of which he was aware. He states that he telephoned a member of the Tribunal staff, Mike Davis, at Southampton on the morning before the hearing asking for an adjournment on the grounds

a) that he could not afford the £15 fare from Bournemouth to Southampton and

b) because he was ill

He states that he was informed by Mr Davis that it was too late for an adjournment but that he would inform the chairman. As to his illness, he now produces a medical certificate from his GP, Dr Edwards, dated 12^th November 2001, which states that the Respondent was under his care on 7^th March 2001 for ten days as a result of a chest infection. It does not state that he was ill or unfit to attend the Tribunal on 30^th March.

10. The test to be applied on appeal, where an application for an extension of time has been refused by the Tribunal, is contained in paragraph 16 of our Practice Directions, itself based on the judgment of Mummary J, then President, in Kwiksave Stores Ltd v Swain [1997] ICR 49.

"An Appellant will not be permitted to pursue the appeal unless we are satisfied at this preliminary hearing that

i) there is a good excuse for failing to enter a Notice of Appearance and if it be the case for failing to apply for an extension of time, and

ii) there is a reasonably arguable defence to the claim"

11. In this case, the Respondent contends that he did not receive notice of the proceedings until very late in the day due to his having moved away from the address for service given in the form ET1. However, it seems to us that he had an opportunity to put that case on 30^th March when the Tribunal could form an assessment of its truth or otherwise. He did not take that opportunity on his account, first, because he was ill, and secondly, because he could not afford the £15 fare travelling from Bournemouth to Southampton.
12. As to the first ground, we find it wholly unsupported by the medical evidence recently obtained for the purpose of this appeal. As to the second, we find it to be wholly spurious.
13. Turning then to the way in which the appeal is put by Mr Doughty, who appears on behalf of the Respondent today, he submits that looking at the short reasons given by Mr Edwards for his interlocutory order refusing the Respondent's application for an extension of time for filing a Notice of Appearance, first that the chairman failed, on the face of the reasons, properly to consider those matters raised in support of the application for an extension of time set out in the letter from the Respondent dated 13^th March 2001, and secondly, again on the face of those short reasons, that the chairman failed to take into account the Respondent's reasons for his non-attendance on 30^th March communicated to the clerk, Mr Davis, the day before that hearing.
14. We have considered that submission but we think it would be quite wrong, where there is no provision in the Employment Tribunal Rules of Procedure, then the 1993 Rules, for Tribunals to provide Extended Reasons for interlocutory orders, to apply an over-literal reading of the short reasons given by Mr Edwards for his interlocutory order.
15. In our judgment, the Respondent having failed to attend, so as to speak to the grounds upon which he relied for an extension of time for entering a Notice of Appearance, for reasons which turn out to be uncompelling, seems to us not to form a proper basis for allowing this appeal to go forward to a full hearing and consequently we should dismiss it at this stage.