Liverpool Airport Plc v Musgrove [1991] UKEAT 260_91_2410

EAT
Liverpool Airport Plc v Musgrove
[1991] UKEAT 260_91_2410 · 1991-10-24
MR JUSTICE WOOD: This is an appeal against an Order of the learned Registrar of 26th July 1991 refusing leave to extend time for a Notice of Appeal.The proposed appellants are Liverpool Airport plc and the circumstances of this case are, in my judgment, highly unusual and indeed rare and exceptional. I only propose to give such outline as is necessary to understand the reasoning in my decision to allow the appeal and extend time as relevant.The Notice of Appeal is in fact 35 days out of time. The decision against which it is sought to appeal was promulgated on the 8th March 1991; the Notice of Appeal was in fact received the 24th May 1991; the date of expiry of the relevant 42 days was the 19th April 1991.The reason for the delay came about in the following circumstances. The applicant, Mr Musgrove filed an Originating Application on the 8th June 1990 and in it he complained in Box No.1:
"1) Written statement of terms and conditions of employment.
2) Lack of justifiable reason for dismissal.3) Penalty for failure to provide written reasons for dismissal."and at the end of that document he claimed re-engagement. That was looked upon by Liverpool Airport plc, his employers, as a claim for unfair dismissal and it was also so regarded by the Office of Tribunals in Liverpool.A hearing took place before a full Tribunal on Wednesday 26th September 1990 and on that occasion the decision was that the applicant had not been continuously employed for the necessary qualification period of two years, and that his claim in respect of unfair dismissal was dismissed.The reasons were given in summary form, and to the surprise of everyone at the end of the hearing when the summary reasons were given, presumably orally, the applicant indicated that he was not pursuing his claim for unfair dismissal.That is made clear in paragraph 7 of that first decision, where the learned Chairman says this:
"The applicant announced at the conclusion of this decision that notwithstanding his Originating Application he complained of a lack of justifiable reason for dismissal and asked for re-engagement that he was not pursuing an Unfair Dismissal claim. The applicant's claims in respect of failure to provide written statement of terms and conditions of employment and written reasons for his dismissal will be heard on another date."
It is abundantly clear therefore, that everyone understood at that time that the sole issues remaining were those two set out there, terms and conditions of employment and written reasons for dismissal.Mr Musgrove was not content with those summary reasons, and asked for full reasons during the preparation of which, the learned Chairman felt that he had perhaps overlooked something. As a result he encouraged Mr Musgrove to seek a review, which was duly brought on for a hearing on the 4th March 1991 when the Tribunal met again and on this occasion they decided that the early decision was wrong; they extended the time for review, well outside the normal limit. They granted the application; they revoked the early decision and found that he had been continuously employed 2 years, the relevant qualifying period.At the end of that decision at paragraph 12 the learned Chairman says this:
"It was further agreed that the remaining claims of the applicant in respect of the provisions of particulars of terms of employment and whether or not there was a failure to provide written reasons for his dismissal was adjourned until 30 April 1991."
There again it is perfectly clear that those are the only two issues which are remaining, and that the continuity has been decided in his favour.On the 30th April those two issues were heard and they resulted in a decision in favour of the applicant; at the end the Tribunal say:
"The only matter now left in this matter is the question of unfair dismissal and on the assumption the applicant is going to pursue that, notices of suggested dates of hearing will be sent out to the parties in early course."
Shortly after that the proposed appellants, Liverpool Airport plc, were aware that the unfair dismissal claim was being pursued.They had not appealed the decision of March, which decided against them on the two years continuity, because after taking Counsel's opinion and considering the matter carefully, they felt that in the light of claims being made it was unreasonable to expend further money on an appeal and that was taken as a considered opinion at the time on the facts as known.Once it had clearly been indicated to them on the 12th May 1991, that the applicant was going to claim unfair dismissal, then within some 12 days a Notice of Appeal was filed after they had considered the matter no doubt further with Counsel. In those circumstances the submission from Mr Wilson was that they acted quite reasonably; they considered an appeal of the March decision and decided against it on the facts as known. Those facts have changed fundamentally and it was not a question here of failing to comply with the rules, which were accepted to be strictly applied in the normal circumstances, but that here it was a rare exceptional situation. In my judgment it was one of those situations which was envisaged in the authorities and it seems to me that there is a substantial number of issues here which merit further inquiry from this Court.In the circumstances therefore I shall allow the appeal and the time will be extended as necessary so that the Notice of Appeal is in time.Whilst this matter is before me I propose to give directions for the appeal. This will be a full hearing, we shall ask for the Notes of Evidence of the 3 hearings; the September hearing; the March hearing and the April hearing. I shall also ask for a bundle to be prepared of all correspondence passing between the Industrial Tribunal and the parties. Shall we say 1 day for the hearing. The correspondence will be prepared initially by the Industrial Tribunal Office. Once it is prepared and ready then it can be shown to both sides and if there is anything incomplete that you can see please draw it to our attention when we are preparing the appeal papers. If there was any other documentation before the Tribunal, of course that must be before us in the usual way.