Willoughby v Morland (Holdings) Ltd [1991] UKEAT 316_91_2810

EAT
Willoughby v Morland (Holdings) Ltd
[1991] UKEAT 316_91_2810 · 1991-10-28
MR JUSTICE WOOD (PRESIDENT) This is an Appeal by Mr Willoughby from a decision given by the Learned Registrar of this Court on 30 July of this year, refusing extension of time within which to appeal. The Notice of Appeal is dated 19 June and was received in this Court on 20 June which is some 8 days out of time.The Decision against which it is sought to appeal was that of an Industrial Tribunal sitting at Manchester on 12 April 1991 under the Chairmanship of Miss Woolley which was asked to give its decision on the written terms and conditions of employment of Mr Willoughby by Morland (Holdings) Ltd. The Decision is to be found at the head of the Judgment in three paragraphs. There was leave to amend the name of the Respondents to Morland (Commercial Developments) Ltd. There was a declaration that the Respondents had failed to give to Mr Willoughby a written statement in accordance with section 1 of The Employment Protection (Consolidation) Act 1978, and there was a finding that the Particulars in respect of Notice which ought to have been included in that written statement was that the employee was entitled to receive reasonable notice to determine his contract.The issue before the Tribunal had been hard fought and both sides gave evidence on this particular term of the contract. The evidence was conflicting and the Tribunal found that they could not reach the conclusion that there was any agreement and as there was no specific agreement they implied a term that reasonable notice was the correct term of the contract and they say at the end of paragraph 10,
"..We do therefore declare that the term under the contract was that reasonable notice would be given by either party."
They continue in paragraph 11, the last paragraph which is misnumbered 10 and should be 11, to consider the situation which was being raised before them by Mr Milner who was representing Mr Willoughby that the Tribunal should decide what that period of reasonable notice should be. The Tribunal refused to put that to construe the term and to say what it thought was a reasonable term of notice as part of its decision and in the middle of paragraph 11, as I have numbered it, they say this:
"..It seems to us that the question of what is reasonable may well be a question of interpretation of the contract which is not for us to say. We think therefore that the better view is that we cannot make it a part of our decision that a particular term was a reasonable term."
Mr Milner has told me today that the Tribunal were suggesting that there should be a settlement of the issue between the parties, the issue arising because the business of the Respondents had folded within about five months and Mr Willoughby was seeking his three month payment in lieu of notice. One month's pay the sum of £1,800 had been paid. He was looking for the other two months. It seems to be abundantly clear that the Tribunal were trying to help a settlement by indicating that had the issue been for them, they would have considered three months to be reasonable.After receiving the Decision on 1 May 1991, Mr Milner who attends at the Citizens Advice Bureau one day a week, wrote to the Respondents a short letter on 15 May saying:
"With reference to the Tribunal decision of 23 April 1991 I should be much obliged if you could let me know whether you will now be in a position to settle the applicant's claim."
and the reply came dated 31 May 1991 saying that the only part of the decision was that a particular term was a reasonable term and there was no obligation to pay.Mr Milner went on holiday on 23 May 1991. That reply from the Respondents was received on 3 June. Mr Milner did not return to the office until 19 June and the Notice of Appeal was filed. It is to be noticed that between 3 and 11 June, there was a week there when a Notice of Appeal could have been filed, but the case being put before me today for the extension of time is that the Learned Registrar was wrong in not extending time because there really had been a decision which was difficult to understand and that the understanding on the reading of it by Mr Milner was a reasonable understanding, namely that the decision had been that there was three months notice as reasonable notice. He has frankly told me today that if there had been no ambiguity he would have appealed and he also says that if he felt it was appealable on legal grounds when he first read it, he would have appealed. It seems to me that the criticism that it was not clear is an illfounded criticism.When one looks at this, even as a layman, it is abundantly clear that the Decision is set out on that first page and contains those three paragraphs to which I have already referred. Secondly, that the declaration in the body of the judgment itself is to be found in that last sentence of paragraph 10, that there is a clear declaration as to what the term was and lastly when one looks at paragraph 11, the Tribunal consider the submission that they ought to find and declare what was that period of reasonable notice. They say that they cannot do so and that they do not do so, and it is quite clear that it does not form part of their decision. The indication was clearly given in my judgment, in order to try to assist the parties to reach a settlement which they were encouraged to do.I have to consider whether, this being a re-hearing, the Learned Registrar erred in the exercise of her discretion. I take into account all the circumstances including the merits of the case itself and in my judgment she did not err and this Appeal must be dismissed. I am happy to recognise however, that this is not the end of the road for Mr Willoughby. It is perfectly open for him to go to the County Court and to argue the case there. Indeed in the light of the indication from the Industrial Tribunal it may be that the Respondents will lose, I know not, that will be a matter for the Learned District Judge or Circuit County Court Judge as the case may be but that is a matter for that Court and not a matter for this Tribunal or this Court. In the circumstances therefore the Appeal is dismissed.