United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS HELEN MOUNTFIELD (of Counsel) Instructed By: Messrs Beachcroft Wansbroughs Solicitors 10-22 Victoria Street Bristol BS99 7UD
For the First Respondent Mr D Holohan For the Second Respondent T. Cartledge Limited	THE RESPONDENT IN PERSON MR GAVIN MANSFIELD (of Counsel) Instructed By: Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ


 


MR JUSTICE LINDSAY (PRESIDENT):

1. I have before me the appeal of David Webster Limited in the matter Mr D. Holohan against David Webster Limited as one Respondent and T. Cartledge Limited, as another Respondent.
2. David Webster Limited's appeal is against the Registrar's refusal to extend time for the reception of a Notice of Appeal.
3. Today, the Webster company has been represented by Miss Mountfield and Mr Mansfield has appeared for T. Cartledge Limited and Mr Holohan has been here in person.
4. The position is that on 21 January 1998 Mr Holohan presented an IT1 for unfair dismissal. At that point the Respondent was T. Cartledge Limited only. He said that he had been dismissed on 31 October 1997.
5. On 11 February 1998 David Webster Limited put in an IT3 saying that it had not employed Mr Holohan at the point of dismissal.
6. On 18 February 1998 there was an IT3 from Cartledge Limited saying that Mr Holohan had been fairly dismissed upon a redundancy. The position, as it seemed to be, was that Cartledge had lost a contract which it had with Brent and that, by implication, there therefore needed to be redundancies. The successful contractor had been David Webster Limited, which is how both companies came to be involved, and presumably there were questions as to a TUPE transfer between one and the other but that side of things I do not need to go into. Indeed, I have not enough information on it, in any event.
7. On 19 and 20 March 2001 there was a hearing at London Central. Mr Holohan was in person, T. Cartledge Limited was represented by a representative from the Engineers Employers Federation, the EEF, and David Webster Limited was represented by Counsel.
8. On 10 May 2001 the decision was sent to the parties. It was the decision of the Tribunal at London Central under the chairmanship of Mr P.R.K. Menon. It was unanimous and it read as follows:

"(1) There was a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 1981 of a business undertaking from the First Respondent (T. Cartledge Limited) to the Second Respondent (David Webster Limited) which occurred in two stages [and then, the two stages are set out].

(2) The dismissal of the Applicant on 31 October 1997 was for a reason connected with the TUPE 1981 transfer and it was automatically unfair under regulation 8(1) of TUPE 1981 and liability for the said unfair dismissal rests with the Second Respondent [that is, David Webster Limited] and

(3) The Tribunal orders the Second Respondent (David Webster Limited) to pay the Applicant the sum of £11,300.00 as compensatory award for the said unfair dismissal."

9. That, as I say, was sent to the parties on 10 May 2001 and so the relatively generous period allowed for the lodging of a Notice of Appeal, namely 42 days from the sending out, expired on the last moment of 21 June 2001. As at the close of 21 June nothing had been received by way of a Notice of Appeal from David Webster Limited. On the next day, 22 June, a Notice of Appeal was received. It was settled by solicitors. It is very short and very simple. The material part that needs to be filled in was less than five lines long.
10. On 28 June 2001 the Employment Appeal Tribunal advised the prospective Appellant's solicitors that the Notice of Appeal was out of time and, on 10 July, David Webster Limited's solicitors wrote in. The individual who had been concerned with the conduct of the case, a Mr Lock, had, it seems, been instructed to appeal on behalf of Webster on 11 June. He completed the Notice of Appeal on 21 June and he set about faxing it to the Employment Appeal Tribunal. He said:

"At my office for the lawyers on each floor of the building there is one fax machine for transmission. Received faxes arrive centrally. Although the fax machine was in use, as you may be aware with most machines, it is possible to dial the number and run the document through the machine. This is then stored and when the machine becomes free it automatically dials the stored number and sends the document through.

As the documents being sent through prior to my fax to you were lengthy, and I had preparations to make for the appeal I was responding to the following day, I ran the documents through the machine and dialled the number. I then departed to complete work for the following day. As far as I was concerned the machine would function and send my fax through, as it has done on all other occasions I have used it.

However, it would appear from my investigations following receipt of your letter, that this did not happen. It seems that there was either an electrical or mechanical failure by the machine and the fax did not go through. Given the time that this was sent through (5:47 pm) there were no personnel around to see that this was the case. As I was out of the office on the Friday I was not aware either."

He says also:

"The fact that it was not received within that time limit was, most likely, the result of an unforeseeable fault with the machine.

We all rely upon technology, whether telephones, fax machines, computers or e-mail. Inevitably such devices will develop faults or break down from time to time."

11. On 30 July Mr Holohan made some telling points against there being any extension of time. He wrote saying, amongst other things:

"I was told after the hearing by Mr Lock in front of Mr Hall, for David Webster Limited, that there would be an appeal."

And a little later, he says:

"The first communication by Mr Lock to his client, from his bundle of documents supplied by yourself, was posted on 4/06/01, some 21 days after receiving.

Mr Lock states that he is head of the employment law at his company and would therefore command several staff, with more than one fax machine available.

Knowingly decides to fax at last minute and leaves a bundle of important documents at the mercy of the machine."

12. On 3 August the EEF, on behalf of Mr Cartledge, also made some relevant points under the Heading "What is the explanation for the default?". They say:

"In our submission, the explanation put forward [I think one has to add the word 'by'] by the Appellant's representative comes down to this, that he failed to check that his fax to the EAT was successfully transmitted. This was particularly incumbent on him as the appeal was being transmitted, as he was aware, on the evening of the last day for appealing in time."

And then, the next heading is "Does it provide a good excuse for the default?". They say:

"We submit that it does not. We refer, by way of analogy, to Capital Foods Retail Ltd v Corrigan, Camden & Islington Community Services NHS Trust v Kennedy and Listers Solicitors Ltd v Lambert . These cases emphasise, albeit in the context of presentation of an unfair dismissal complaint, that solicitors will only act without fault if they have in place a system which enables them to find out contemporaneously whether the conduct of business is taking a normal course."

13. On 10 September 2001 Websters put in their final submissions. They say, amongst other things:

"There was, therefore, a system in place that based on experience has always shown itself to be reliable and trustworthy."

14. The matter then came before the Registrar on 28 September 2001 and the Registrar refused an extension of time. On 8 October 2002 David Webster Limited appealed against the Registrar's Order.
15. Miss Mountfield put in outlined submissions on behalf of David Webster Limited and, of course, addressed the matter orally. In paragraphs 5 and 6 of her skeleton argument she says this:

"The deadline for lodging the appeal on 21 June 2001. On that day, Beachcroft Wansbroughs attempted to lodge the Notice of Appeal by fax. Unfortunately and unbeknownst to the lawyer with conduct of the case, the fax did not transmit. The full circumstances in which this took place are set out in the letter of Alex Lock to the EAT dated 10 July 2001. The fax was of the kind which stores documents before sending them, and it was reasonable to believe that, the document having scanned through the machine before close of business on 21 June, it had also transmitted on that date.

The lawyer with conduct of the matter was appearing in the Employment Appeal Tribunal on the next day, 22 June 2001. Immediately that it became apparent that the previous transmission had failed the Notice of Appeal was retransmitted: this was at 17:31 on 22 June 2001. Again the circumstances are fully and fairly set out in Alex Lock's letter."

And she says, in her paragraphs 10 and 11:

"It was not like a manual fax where it was possible to see if a document (for instance) jammed: the document had scanned through the machine, and the lawyer with conduct of the case reasonably believed that it was stored in the machine's memory and would be transmitted on the same day.

It is submitted that this does constitute a good excuse for the default."

16. Miss Mountfield's oral argument has taken the same course; that there was here a full honest and acceptable explanation. The fullness and honesty is not in dispute. The question truly is whether it is an acceptable explanation. To the question put to Miss Mountfield of whether it was truly necessary, in order fully to supervise the operation of the machine, to wait to see the message actually go through, she said that that was counsel of perfection.
17. Mr Mansfield, in his skeleton argument (and, again, oral argument has taken much the same course) says in his paragraph 7, of the explanation given by Mr Lock, that it does not properly deal with the question of:

"Why it took until 11 June for the Appellant to give instructions to their representatives to pursue an appeal,

Why it took until after 5 pm on the last day for service of the Notice for the Notice of Appeal to be drafted"

And, he says, taking up the point that the EEF had made:

"If service is to be left to the last minute, it is incumbent on parties and their solicitors to have in place a system which enables them to find out contemporaneously whether the conduct of business is taking its normal course [and then, again, those cases that I mentioned earlier are cited]."

18. I have had passages from Abdelghafar cited to me, which I hope I have in mind, but it does seem to me that any solicitor who leaves service of a Notice of Appeal to late on the last day needs to take a special care to ensure that it has, indeed, been received by the Employment Appeal Tribunal by whatever means he attempts delivery. That was not done. It seems to me not, in the circumstances, to be some unreasonable counsel of perfection for Mr Lock to have actually seen that the message went through or failed to go through, in which case he could have remedied the situation: not counsel of perfection but a perfectly reasonable step to have been expected of him, given that he was transmitting late on the last day for a timely Notice of Appeal.
19. The case of Camden & Islington Community Services NHS Trust v Kennedy has been cited by Mr Mansfield. It was, in effect, summarised adequately both in Mr Mansfield's skeleton argument and in the earlier letter of the EEF. But in the IRLR the following passage comes from the case; it would seem that the print-out that I have is from page 381. It makes a reference to Capital Foods Retail Ltd v Corrigan [1993] IRLR 430 and, continuing in a quote from the Camden case:

"The test laid down in Corrigan is a stringent one. For a solicitor to act reasonably and without fault, there must be a system in place which enables the solicitor to find out, contemporaneously, [my emphasis] whether the conduct of business is taking a normal course and to check, at or near the time, that replies which should have been received at a given date have in fact been received. A competent solicitor practising in this field must be taken to appreciate the vital importance of complying with time limits strictly and having in place a system designed to ensure that such limits are complied with at the time when they are supposed to be being complied with."

20. The Camden case is not on all fours; it was not a fax case it was a postal case and it was concerned with the lodging of an IT1 rather than with a Notice of Appeal but the principle remains that it is important that the solicitor (and I would emphasise especially where the case is a late service on the last day) should contemporaneously see that the conduct of business is taking a normal course. That, Mr Lock, it seems to me, did not do. I might also make reference to Aziz v Bethnal Green [2000] IRLR 111, where in the Court of Appeal the discussion was whether the typically very strict line that was taken by the Employment Appeal Tribunal on late Notices of Appeal was even more strict than the Court of Appeal was with its own appeals and that therefore it ought to be relaxed. But there is nothing in the Court of Appeal's decision in Aziz v Bethnal Green to indicate that anything needed to be changed in the traditional approach of the Employment Appeal Tribunal, which is to take a very stringent line on late appeals, a line which, given the relatively generous period of 42 days, is not improper.
21. Accordingly, although this matter was only one day late and although there is an honest and full explanation by Mr Lock, it seems to me that it is not an acceptable one and therefore I dismiss the appeal against the Registrar's refusal.