Bhandari (t/a) W B Wholesale & Co Ltd) v Lalwani [1996] UKEAT 1222_95_2702

EAT
Bhandari (t/a) W B Wholesale & Co Ltd) v Lalwani
[1996] UKEAT 1222_95_2702 · 1996-02-27
MR JUSTICE MUMMERY (PRESIDENT) : This is an appeal by Mr Bhandari against the order of the Deputy Registrar of this Tribunal on 4 December 1995. He refused an application for an extension of time in which to enter a notice of appeal. He reached that decision after considering written representations from both sides.On 29 December, Mr Bhandari wrote to the Tribunal referring to a telephone conversation and said that he wanted to appeal against the decision refusing an extension. He said that the Tribunal had been misled by Mrs Lalwani's representatives. He was informed on 11 January that the appeal would be heard by a judge and that a date would be arranged for the hearing.Notice was given that the appeal would be heard today. Yesterday there were a number of telephone calls and a fax from Mr Bhandari asking for the appeal adjourned. Mr Bhandari is in circumstances that attract sympathy. His wife was admitted to hospital last week with a suspected heart attack. She was released on Sunday and he is looking after her. He set out his reasons for the application for an adjournment in a faxed letter at 4.30 pm yesterday. When he was informed that the case would not be adjourned, he telephoned and said that he would try and attend. He telephoned again this morning to say that he was on his way. Fortunately, he has arrived. The hearing of his appeal started after the mid-day adjournment.Was the Deputy Registrar correct in refusing an extension of time? Mr Bhandari says that he was not. He should have extended the time. Mr Purnell, who appears for Mrs Lalwani, submits that the appeal should be dismissed.Has Mr Bhandari given a satisfactory and full explanation of why the appeal was not brought in time. Does that explanation amount to a good excuse for not complying with the time-limits. Can this be regarded as an exceptional case where the Rules for the service of a notice of appeal can be relaxed and an extension granted.Mrs Lalwani started a case as long ago as 23 February 1994, almost exactly two years ago, claiming that she was entitled to wages which had not been paid. She, therefore, brought her application under the Wages Act 1986. She claimed that she was entitled to payment in respect of deductions made without her authority from her wages.The case was contested. A notice of appearance was served on 25 March 1994. The hearing before the Industrial Tribunal at London (North) took place before a Chairman alone on 5 February 1995. The heading of the case was Mrs M Lalwani against Mr W Bhandari, trading as W B Wholesale & Co Ltd. The Tribunal heard Mr Purnell, who represented Mrs Lalwani. Mr Bhandari appeared in person. The Tribunal decided that Mr Bhandari should be ordered to pay compensation for unfair dismissal amounting to almost £4,000 and a further sum of £591.46p in respect of the claim under the Wages Act. The reference to unfair dismissal is explained in a second originating application, claiming constructive dismissal and a further claim under the Wages Act.The Tribunal heard the two applications together and heard evidence both from Mrs Lalwani and Mr Bhandari. There was a conflict of evidence. Where there was a conflict, the Chairman preferred the evidence of Mrs Lalwani to Mr Bhandari's. The crucial facts relevant to the arguments today are, first, that Mrs Lalwani was employed by a company, W B Wholesale & Co Ltd, from March 1980 as a sales assistant, in May 1993 that company went into liquidation; but the business was carried on by Mr Bhandari without any significant interruption, with the same people, employing the same staff and serving the same customers. The Tribunal made findings of fact on the claims under the Wages Act and the claims for constructive dismissal. I need not deal with the details.Today's hearing is not concerned with the merits of the case, or the merits of the appeal. It is concerned with whether an appeal should be brought to this Tribunal. The notice of appeal was not served in time. The crucial date for the appeal is that the stamp at the end of the extended reasons records that the decision was sent to the parties on 8 February 1995. That is the date that starts the time for appealing running. Under Rule 3(2) of the 1993 Employment Appeal Tribunal Rules:
"The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision ... of the industrial tribunal were sent to the appellant ..."
The notice of appeal which Mr Bhandari has signed was not served on this Tribunal until 13 October. It was signed by Mr Bhandari. It is headed as an appeal by W B Wholesale & Co UK of 35 Romford High Street, Essex, and says that it is an appeal from the decision by the London North Tribunal dated 8 February 1995. He gave the two case numbers which appear on that decision: 12544/94 and 20518/94. That is the Wages Act claim and the combined constructive dismissal and Wages Act Claim. The notice of appeal was months out of time.What is Mr Bhandari's explanation for this? The explanation in his letter to the Tribunal, when he was asking for an extension of time, was that he did not receive notification of the decision of the Tribunal until 28 August 1995. He states in that letter:
"I enclose a copy of the envelope which bore the decision for your information and please note there was an intervening weekend so I did not get the letter until the 28th August 1995.
I submit therefore that the delay in this matter is not my fault and accordingly that this matter be allowed to go ahead as all the necessary reminders to the tribunal were sent without me receiving a reply."That is signed by W Bhandari, Consultant. The heading notepaper of that letter bears the name W.B. Wholesale & Co UK, 35 Romford High Street, Essex. Attached to that letter is a photocopy of an envelope addressed to Mr Bhandari WB Wholesale & Co UK at a different address, 88-90 Middlesex Street, London E1. It is stamped at the top with a post stamp 23 August 1995. The envelope bears the printed words "Industrial Tribunals (London North). Mr Bhandari has shown me the original envelope. His case to the Deputy Registrar was that the reason he was out of time with the notice of appeal was that he did not receive the decision which he is appealing until 28 August.Mr Bhandari's application for an extension was opposed by the representative of Mrs Lalwani. In my judgment, they were entitled to oppose it because the documents in the file show that Mr Bhandari is mistaken when he thinks that he did not receive the decision until 28 August. In the file is a letter written by him to London (North) Regional office dated 22 February 1995 in which he refers to the case and to the case numbers of the decision by the Industrial Tribunal, and says:
"I wish to apply for a review of the Tribunals decision on the grounds that firstly the decision was wrongly made as a result of errors on the part of the tribunal and its staff and secondly that the interests of justice require such a review."
He sets out in the rest of the letter the reasons why he is seeking a review. He refers specifically to paragraphs in the decision; for example, paragraph 2(c), which demonstrates beyond any doubt that Mr Bhandari received and read the extended reasons for the decision of the Industrial Tribunal sent on 8 February. It cannot be correct for him to say, as he said to the Deputy Registrar of this Tribunal in his letter in support of the application for extension, that he did not receive notification of the decision of the Tribunal concerning the appeal until 28 August. He received it before 22 February. He could have appealed against that decision in time. I reject the explanation and the excuse which Mr Bhandari advances for not having appealed in time.At the hearing Mr Bhandari made two further points. The first, if I understood him correctly, was that he was seeking to appeal the decision on his application for review. It appears that his letter seeking a review dated 22 February was put before the Chairman. The Chairman had signed a document dated 16 March 1995 refusing the application for a review on the grounds that it had no reasonable prospect of success. Mr Bhandari is now saying that that is the decision which he seeks to appeal against. He did not receive that decision until 28 August.I reject that point because it is clear from the notice of appeal which Mr Bhandari signed that the decision which he was appealing against was not the review decision. It was the substantive decision of the Industrial Tribunal sent on 8 February 1995 in relation to the two cases under the Wages Act and the constructive dismissal claim.The second point is that there is a mistake in making him personally liable for the claims of Mrs Lalwani. This is a point he made during the course of this dispute. The Tribunal dealt with it in the main decision. The Chairman dealt with it in the reasons for refusing a review. The answer to Mr Bhandari's point is this: although Mrs Lalwani was originally employed as a sales assistant by a company called W B Wholesale & Co UK, that company went into liquidation, and, after it went into liquidation, Mr Bhandari continued the business without significant interruption with the same staff and the same customers. By continuing that business, he continued the contract of employment of Mrs Lalwani and became personally liable to her. Although this point is not dealt with expressly in the decision or in the refusal of the review, the legal position is that if Mr Bhandari continued the company's business, as the Tribunal found as a fact he did, there would be a transfer to him personally of the undertaking of the company. That would make him personally liable for any contracts of employment of employees of the company. He would then become personally liable for the payment of wages and for any subsequent dismissal that was unfair.I am not, however, concerned with a decision on that point for the purposes of disposing of this appeal. This appeal is solely concerned with whether Mr Bhandari is entitled to pursue an appeal, even though he is out of time for appealing. In my judgment, he is not entitled to pursue the appeal. He received the decision sent on 8 February. He did not appeal within the 42 days which the rules require. He has no good explanation or excuse for not complying with that provision.In those circumstances, I accept Mr Purnell's submission that the appeal against the Deputy Registrar's order should be dismissed.