Bowers v Harris Office Supplies Ltd [1992] UKEAT 567_91_0602

EAT
Bowers v Harris Office Supplies Ltd
[1992] UKEAT 567_91_0602 · 1992-02-06
MR JUSTICE WOOD (PRESIDENT): This is an Interlocutory Appeal from a decision of the learned Registrar given on the 14th November 1991 when she refused an extension of time to the Appellant, Mrs Bowers for her appeal. The Notice of Appeal is dated the 11th October 1991. Mrs Bowers appeals against two Decisions of an Industrial Tribunal sitting at Bedford under the learned Chairman, Mr Drysdale.The Decisions were promulgated, the first Decision on the 17th July 1991 and the Review Decision on the 29th August 1991. It follows, if one does one's calculations, that the Notice of Appeal against the first Decision is 48 days out of time and against the Review Decision is some 5 days out of time. In order to look at the background of this matter and to see whether there is any likelihood of this Appeal succeeding, were time to be extended, I look at the original Decision and the Review Decision.Mrs Bowers was employed by Harris Office Supplies Ltd from the 20th March 1978 until the 9th November 1990 when her employment ceased at the end of a four week notice. At the time she held the post of Sales Ledger Supervisor. Mrs Bowers was claiming that she had been constructively dismissed because she had been offered a new post which she suggested was a demotion.The Tribunal heard evidence about the problems at the Respondents' Company, there had been a number of take-overs of companies, and in August 1990 Mr Allen became Financial Director of Harris Office Supplies Ltd. He went to St Albans, which was now the centre for the financial aspects and running of the Company, he found a chaotic situation, extensive losses; high debts and the transfer had created huge problems. There was poor staff morale; poor organisation and distribution of work load, and he felt also there was poor and inadequate supervisory structure. He decided to re-organise. Mrs Bowers decision to resign arose after she had been offered a new post. The Tribunal looked at the offer, looked at the situation and they reached a conclusion, in paragraph 6 of their Decision, where they say:
"In our unanimous view, this is not a demotion. The offer of that job did not show an intention not to be bound by any essential terms of Mrs Bowers' contract of employment."
They say later, in paragraph 9:
"Even if this had been a case of constructive dismissal, we are satisfied that the re-organisation the respondents undertook was a reasonable and proper one to adopt in the circumstances. This would have provided grounds on which Mrs Bowers could have been fairly dismissed if she was not prepared to accept the position offered. We are satisfied from Mr Allen's evidence that the respondents were met with what can only be described as a crisis."
Indeed, they take the view that Mr Allen's decisions had saved a great number of jobs.Mrs Bowers had represented herself and at or shortly before the start of the hearing a bundle of documents had been produced, Mrs Bowers felt that she had not had a chance to look at them, and asked for some time to look at them, she was granted what she calls "a few minutes". As a result, she felt that there was a lack of justice and she applied, by a document which is dated 26th July 1991, for a Review. The basis of it can be found in paragraphs 5, 6, 7 and 8 of that document, she says:
"5. Shortly before the Hearing a member of the Industrial Tribunal's staff handed to the Applicant a grey folder consisting of 114 pages of documents.
6. This was apparently the Respondents' bundle of documents although it was not marked as such and not indexed.7. The bundle had not previously been served upon the Applicant although she had seen some of the documents before.8. The Applicant requested an adjournment in order to consider the bundle but this application was refused meaning that she had only a few minutes to consider the bundle."that is the gravamen of her case.In the Decision of the Review, which as I have said, was promulgated on the 29th August 1991, the learned Chairman set out the main ground and then he said in paragraph 2:
"I have asked the respondents for their comments. They accept that they supplied a bundle of documents to the applicant shortly before the hearing but say that the only documents not seen earlier by the applicant were an organisation chart and a financial summary. They do not accept that a request was made for an adjournment either before or during the hearing."
Then the learned Chairman goes on thus in paragraph 3:
"I have consulted the other members of the tribunal. Neither of them accepts that the applicant requested an adjournment. They both add that if such a request had been made and refused they would have objected and would not have been a party to a decision dismissing the application.
I have no recollection of there being a request for an adjournment or of Mrs Bowers informing me that she had only recently received some documents. I have no record of such a request in my notes. I have never refused an adjournment when requested. Indeed if I am aware that a party is in difficulties through not having received any documents I always suggest an adjournment to the party concerned."He therefore refuses the application for a Review.The day after that Decision was promulgated Mrs Bowers received a letter from her solicitors, which is dated the 30th August, and they explain this:
"I enclose a copy of the Industrial Tribunal's decision on review received this morning.
You will see that they have rejected your application.You are entitled to appeal to the Employment Appeal Tribunal against the decision made by the Chairman on review and the time for making that appeal is within 42 days from 29 August 1991, being the date of that decision. Consequently the time for appealing against the review decision expires on Thursday 17 October 1991."That last paragraph is the important one, the last date is clearly an error of calculation and that is admitted subsequently in a letter from the solicitors of the 6th November 1991. Mrs Bowers tells me that they have returned part of the fee which she paid them. The last day was in fact the 10th October.The reasons given by Mrs Bowers for the failure to give her Notice of Appeal in time is that she was misled by her solicitor. He has admitted that he was in error. That is a matter between her and her solicitors.The strictness of the approach of our Tribunals on time has been set out clearly in the Practice Direction and also in the decisions which are indeed well known. One can see the reason why this happened, the question remains, was this excusable? The learned Registrar clearly thought not, I agree with her. Indeed, when one looks at the merits of any appeal it seems to me that it is really bound to fail. An appeal to this Court is only on a point of law and I can find no error of law in the two Decisions to which I have already referred. It is because of that that I have referred to them in some detail.It follows therefore, for the reasons which I have given, this Appeal against the Order of the learned Registrar made on the 14th November 1991 must be dismissed.