United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Simon Rose (Representative) The Appellant in person


 


HIS HONOUR JUDGE J McMULLEN QC

1. For the reasons I give below at paragraph 5, this judgment was reserved. I will refer in this judgment to "Applicant" and "Respondents" as at the proceedings below. It is an appeal under Rule 21 of the EAT Rules against a decision of the Registrar to refuse a Notice of Appeal entered by the Respondents in those proceedings on 23 May 2003 as being 141 days out of time.
2. The Notice of Appeal is against the Decision of an Employment Tribunal Chairman sitting alone, Mr K J Fletcher on 7 August 2002, sent to the parties on 19 August 2002. The Applicant appeared in person, the Respondents did not enter an appearance and did not attend. The Tribunal Chairman found that the Respondents made unlawful deductions and were in breach of contract and ordered a sum of £1,045 to be paid to him.
3. The Chairman decided that the Applicant was employed by the three Respondents from November 2000 until 13 February 2002 when he was dismissed by Mr Muff in a way which was simple, brutal and abrupt. A month later, Mr Rose bluntly refused to pay the Applicant the money he was owed.
4. By a letter of 23 May 2003 signed by Mr Muff the Respondents seek to appeal. He rehearses a case which plainly indicates to me the existence of an employment relationship between the Respondents and the Applicant. He gives their reason for non-attendance at the Employment Tribunal as that the police had advised them not to attend because of harassment by the Applicant of Mr Muff and his social and business partner Mr Rose. It is said in this letter that that information was communicated on the telephone and in writing to the Tribunal in Leeds. It is also contended that the information provided by the Leeds office was unclear and misleading in relation to "the intended appeal". Reference is made to a letter of 22 August 2002 in which it is contended that an appeal was lodged.
5. The Respondents in their appeal from the Registrar referred to this letter and to a letter of 16 September 2002. They did not have copies of these letters at the hearing and so I adjourned for seven days in order that they may make them available to me. I have also received written submissions from the Applicant. He had previously put in written submissions in relation to the appeal.
6. Despite this adjournment I have still not seen the letter of 22 August 2002. I can divine its contents from the letter from the Tribunal dated 16 September 2002 which says as follows:

"The Respondents had the opportunity of making the points which they now raise by entering an appearance and attending the hearing. They chose not to do so.

In as much as their letter amounts to an application for a review of the Tribunal's decision, in accordance with Rule 13 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, it is devoid of merit and is refused."

The letter goes on:

"If you are unclear or uncertain as to any of the above matters"

the Respondents were given an opportunity to seek further information.

7. On 31 July 2003, in response to an enquiry from the Registrar at the EAT, the Regional Chairman said as follows:

"Documents on the file indicate the following history: the application was presented on 13 May 2002. The respondents did not enter an appearance. A decision was made on 7 August and promulgated on 19 August 2002.

On 22 August, a letter was received from the respondents indicating that the applicant had been employed by a company called Care for Independence Limited. That was treated as an application for review, which was rejected by the chairman, Mr Fletcher, by letter dated 16 September 2002.

The following day, one of the respondents, Mr Rose, rang this Office and spoke to a member of the Tribunal staff. Mr Rose explained that he was disabled and complained that we should have a system whereby he could dictate his notice of appearance to a member of staff. He was given the names of senior people within the administrative hierarchy.

He next called this Office on 11 November, when the member of staff to whom he spoke suggested that he should appeal. He responded by saying that under the Disability Act, the Employment Tribunals Service should make provision for it to complete the notice of appeal for him. The following day, the Deputy Regional Secretary sent an email to the Registrar, a copy of which is enclosed."

8. Attached to that was the e-mail which had been sent from the Leeds Tribunal to the Registrar which says as follows:

"Please be advised that we have a respondent in a claim at the Leeds Tribunals, who wishes to make an appeal to yourselves. Mr Rose has advised us that he is disabled and has difficulty writing/completing forms.

David Schumm, Customer Service Manage, has advised Mr Rose that we will accept and send correspondence by audio tape from/to him, and the CSO team will then produce the documents as required.

On the advice of Simon Condliffe, David's deputy, I have today advised Mr Rose that if he wants to send his appeal through to your offices on audio then the CSO team will have it typed up for him, if your offices forward it on.

I suspect that you will receive a tape in due course.

The full details of the case is as follows:

Mr D J Wheelwright v Wits End (Jason Muff, Simon Rose, Judith Barkham). 1802501/2202.

Heard in Leeds on 7th August 2002, chairman Mr J K Fletcher, Mr Rose did not attend the hearing nor did any of the other named Respondents.

If you require any further information please either telephone myself on 031132366502 (I am on leave after today until Wednesday 21 November 02) of Simon Condliffe on 0161 833 6313"

It is clear from the Regional Chairman's letter that there is no indication of a letter being presented prior to the hearing before the Chairman, as is asserted by the Respondents.

9. The Registrar decided that the appeal was out of time. She applied the relevant authorities which are Aziz -v- Bethnal Green City Challenge Company Ltd [2000] IRLR 111 and United Arab Emirates -v- Abdelghafar [1995] ICR 65. This correspondence indicates that the Employment Tribunals were assisting Mr Rose since he had contended that he was disabled. Yet the offer by the Employment Tribunals, in co-operation with the EAT, of a means by which he could present his appeal was not adopted by Mr Rose.
10. At the hearing before me, Mr Rose conducted the proceedings but handed over to Mr Muff. The principal basis upon which the appeal was conducted was that Mr Rose is disabled, having the condition of dyslexia, and had had a breakdown. I am not in a position to make any judgment about those matters but note that the disability was accepted by the Employment Tribunal when it made available the means for the presentation of an appeal. Nevertheless, Mr Muff is not disabled, nor did he have a breakdown. He was sued personally as a Respondent, and corresponds on behalf of the Respondents. Furthermore, Ms Barkham who has communicated directly with the EAT and is sued as an individual Respondent, seems not to be disabled. I do not see why the conduct of these proceedings could not have been left to Mr Muff. He did, after all, write what became the application to lodge a Notice of Appeal at a time dated 23 May 2003.
11. Nor do I accept, as is now contended, that the delay in presenting the Notice of Appeal was occasioned by confusion brought about by the Employment Tribunal. Without a copy of the letter of 22 August 2002, I cannot fault the Decision of the Tribunal Chairman that it was treated as an application for review. It is clear that advice was being given to Mr Rose about how he could present his appeal, yet he did not take it. I cannot fault the Decision of the Chairman on review that the application was devoid of merit.
12. At the heart of the grievance of the Respondents is their contention that they never employed the Applicant. As the Applicant, with logic, points out, the letter of 23 May 2003 proceeds on the basis that there was an employment relationship and yet they seek to deny it. There is no reason why that could not have been asserted to the Employment Tribunal in a Notice of Appearance and in written submissions, if in truth the Respondents feared to go the Employment Tribunal. In any event, the merits of the appeal are generally of little importance since I am considering the reasons for its not being made on time. Insofar as I have had an insight into the merits, it appears that the appeal has none. I have considered the wage slips enclosed with Mr Muff's further submissions of 24 October 2003, but they do not outweigh the clear findings made by the Chairman of actions by Mr Muff and Mr Rose, consistent only with being the employer of the Applicant, together with the representations made in May 2003 to the same effect.
13. In the circumstances I see no rare and exceptional circumstances in this case justifying the grant of an extension of time for 142 days to present the Notice of Appeal. I uphold the Registrar's decision and dismiss the appeal. The Notice of Appeal is dismissed.