Esden v McGee [1998] UKEAT 707_97_2801

EAT
Esden v McGee
[1998] UKEAT 707_97_2801 · 1998-01-28

JUDGE C SMITH QC :

There is before us an application by Mr Esden, the Respondent before the Industrial Tribunal, to proceed to a full hearing of his appeal against a decision made by the Industrial Tribunal on a review, in relation to a remedies hearing, that there were no grounds for altering its decision that amongst the heads of compensation to which the Applicant, Mr McGee, the employee, was entitled, was a figure of £640, subject to a 50% deduction, relating to the expenses incurred by Mr McGee with regard to his use of a motor vehicle, in pursuing efforts to find employment, and in relation to a figure of £50.26 which had been awarded without deduction relating to one day's notice for gross pay in respect of 24 December 1996.Before we consider whether there are any possible grounds for allowing that application for leave to appeal against that decision, we have to consider an application that has been very courteously made to us this morning by Ms Andrew from ELAAS and supported by Mr Esden who is here in person. This is an application to us for leave to appeal out of time against the original decision of the Industrial Tribunal because there were altogether three decisions here by the Industrial Tribunal.There was the decision on 10 April 1997 which was sent to the parties on 1 May 1997. That was the first decision. That decision was that the Applicant before the Tribunal, Mr McGee, had been unfairly dismissed (and we will return to that in a moment).As part of that decision the Industrial Tribunal found that they assessed the chance that, if he had been properly consulted he would have kept his job, was to be assessed as 50%, so the Tribunal there found that they were going to award compensation on the basis of whatever compensation is properly to be awarded, he will receive 50% of that figure, as appears from paragraph 7 of that decision.Then there was the remedies hearing which took place on 2 May 1997, of which extended reasons was sent to the parties on 29 May 1997. At that remedies hearing Mr Esden, the Applicant before us today, as the Respondent employer, was ordered to pay Mr McGee the sum of £1,222.78 calculated in accordance with the Schedule. The compensatory award included £640 for loss of use of the car and that was, of course, subject to the 50% discount which we have already referred to and, in addition there was an award for one day's notice pay gross for 24 December 1996, £50.26.What happened then was that there was an application by Mr Esden for a review of that decision, ie that decision relating to compensation be it noted at the remedies hearing. There had been no application for any review of the hearing in relation to unfair dismissal, but there was an application for a review in relation to the remedies hearing. That was dealt with by the Industrial Tribunal on 22 October 1997 and the reasons for the refusal of the review were sent to the parties on 17 November 1997 and one of the points made by the Chairman in that decision, at paragraph 8, dealt with the matter in this way:
"On the question of whether the interests of justice require a review, this Tribunal in considering the Respondent's application and hearing oral submissions from him in support spent a good deal of time explaining the reasons for compensating the Applicant for out-of-pocket expenses incurred in mitigating his loss, those expenses being fuel and other overheads on his car. The fact that the Respondent is unable to accept the Tribunal's findings in that regard does not mean that the interests of justice require a review."
We note that situation because it is clear that, at that stage at any rate, which is October 1997, the debate that was going on between Mr Esden and the Industrial Tribunal was a detailed debate as to whether the Applicant was entitled to those out-of-pocket expenses in relation to the car.What then happened (to continue the chronology) was that by 25 November 1997 the record shows that the Applicant, Mr Esden, was writing to the President of the Employment Appeal Tribunal, setting out at length his reasons for saying that he felt that the original decision had been wrong and complaining about that decision, concluding by saying:
"I feel there is a gross misjudgment in this case and there are questions that should be answered and agreed as I did everything required, the only reason Mr McGee continued with his claim was he wanted financial compensation, knowing that he had nothing to lose and everything to gain and I had everything to lose and nothing to gain."
So that was the flavour of that letter. There were copies to Mr Esden's Member of Parliament and to the Trade and Industry Minister. That met the response from the President, and we respectfully refer to it in the bundle from the President's Clerk, in the letter dated 27 November 1997, where the President obviously expressed sympathy that Mr Esden was frustrated and desperate and pointing out that proceedings before any court can be a stressful experience for some people. But the letter went on to point out that he was well out of time, from appealing against the first Tribunal decision because, of course, even then he was quite considerably out of time, since the time would have run from 1 May 1997 and the rules require that an appeal has to be made within 42 days, so that would have taken him through to the middle of June and so time would have elapsed in relation to appealing against the original decision, approximately in the middle of June.So he would have been well out of time on 27 November, when the Clerk to the President was pointing that out to him but, of course, pointing out to him as well that he was still in time to appeal against the application for a review of the remedies decision and that, indeed, he had already done, because he had put in his Notice of Appeal in relation to that decision on 11 June 1997 and, looking at that Notice of Appeal, which is the only Notice of Appeal we have in front of us at the moment, which was received by the Employment Appeal Tribunal on 12 June, that is entirely related, and exclusively related, to the company car point. The grounds upon which that appeal is brought, reading from page 1 of the bundle, are that the Industrial Tribunal erred in law in paragraph 4 and that is in relation to the company car point and finally:
"I dispute and have evidence that he was not available to work on 24 December, paragraph 7."
So it is quite clear that that was the extent of that Notice of Appeal.Now what has now happened is, that we have been told today that it was only today that it was appreciated by Mr Esden that all along there was a glaring error of law in the original decision of the Industrial Tribunal, although he also told us that he had, in fact, attempted to consult Solicitors, but had been asked for very large amounts of money which he could not afford.The point now that Counsel, representing him this morning under the ELAAS scheme, very helpfully submits to us, is that he should be allowed to make by way of an appeal out of time arises as follows. It requires us to look at the original decision. By that decision the Industrial Tribunal had to consider whether the Applicant, Mr McGee, who had apparently been employed as a supervisor, although this does not appear definitively from the decision and nor does it appear absolutely clearly from the IT1, because in the IT1 he describes his job as being "Cleaning and clearing repossessed houses, gardening, glazing, plastering, lock changes, drain downs and assessments" but we are told, and we accept, that he was in fact a supervisor in the Respondent's business, which is quite a small business, of house maintenance and preparational organisation, had been dismissed fairly by reason of redundancy. There was no issue that he had been dismissed on 24 December 1996, being the effective date of termination, but the issue before the original Tribunal was whether he had been dismissed by reason of redundancy and, if so, whether he had been fairly dismissed.The Industrial Tribunal held, in accordance with the submissions made to it by Mr Esden, who appeared in person, because both sides appeared in person before the Industrial Tribunal, that there was a redundancy situation. They correctly applied the very recent and important case of Safeway Stores v Burrell [1997] IRLR 200 and concluded that the dismissal was by reason of redundancy.They then had to go on to decide, and they asked themselves the right question under Section 98 of the Employment Rights Act 1996 as to whether the Respondent had acted fairly and reasonably throughout the dismissal process, having set out the very well known words in Section 98(4) of the Act. They then looked at that matter, closely in our judgment, in paragraph 5 of the decision. They noted that the Respondent, Mr Esden, had first approached the matter by hoping that he would be able to make all his employees redundant and then use their services on a self-employed basis. They dealt with that and they observed that Mr Esden's evidence to them was that that scheme had been ruled out by the Inland Revenue, who told him that he could not do that. Then they went on this way:
"5. This had been discussed with his employees in November 1996. The applicant [of course, that would be Mr McGee, we interpose] had made it quite clear that he would not find this acceptable even if approved by the Inland Revenue. On 9 December 1996 the respondent telephoned the applicant and told him that he was going to be made redundant on 24 December 1996. The reason he did that was to give a fortnight's notice as the applicant had worked for a period in excess of 2 years. The respondent confirmed that prior to telephoning the applicant and giving him notice he had not had any further consultation or discussion with him as to the position. Thus there had been no opportunity of examining whether there was some way in which the applicant's redundancy could have been avoided."
So there the Industrial Tribunal were finding that the Applicant did not find acceptable the suggestion that he should work on a self-employed basis and they were also finding, as a fact, that the Respondent had confirmed to them (in evidence, no doubt, they meant by that) that there had not been any further consultation or discussion with the Applicant as to the position.They then went on to decide that it was a very important feature of any redundancy process that there must be proper consultation and obviously they were right in law in saying that. They then looked at the matter with regard to the Polkey discount as to whether that applied and concluded that, had there been proper consultation, there was a chance that the Applicant would have remained in employment which they assessed at 50%.So that was their original decision. In our judgment, on the face of that decision, it was a careful decision made by a full Industrial Tribunal, a Chairman and two members. It was a unanimous decision dealing with, as is commonly is the case, a situation where both sides were in person, and it was a carefully reasoned decision which paid, on the face of it, full regard to the evidence that had been given.The point that is now taken is by reference to Mr Esden's Notice of Appearance at page 16 of the bundle, which is in these terms:
"He can have his job back under the agreed conditions before he left. He quoted prices for work and we agreed on a sub-contract basis using his Housing Maintenance Company and invoicing me for the work done."
Those are the relevant parts of the Notice of Appearance. It is submitted to us that there was evidence before the Tribunal that there had been this agreement of some kind or another between the Applicant and the Respondent under which the Applicant would provide his services as a gardener for a consideration, on a self-employed basis, and the submission was made to us that, in some way or another that amounted to evidence of consultation, in relation to the loss of his job by way of redundancy and his selection for redundancy, in relation to his employment on an employed basis as a supervisor.In our judgment that, on the merits, cannot be said to give rise to any possible argument of law in relation to the original decision. It is foreclosed by the fact that the Industrial Tribunal found that the Applicant had made it quite clear that he would not be amenable to any agreement to work on a self-employed basis and, in any event, even if there was an agreement of some kind between the Applicant and the Respondent, along the lines now contended for by the Applicant, that could not amount, as a matter of law in our judgment, to any evidence of consultation.So that looking at the matter on the merits, in our judgment there is very little, if any merit in the application, but the matter goes further than that because, in our judgment, it is hopelessly out of time and there has been no sufficient reason shown for the delay.We should add that the correct procedure in relation to applications for an extension of time has not been followed at all. The proper procedure is to apply to the Registrar on notice under paragraph 3 of the Practice Direction (Employment Appeal Procedure) 1996, where it is provided at sub-paragraph 2 of paragraph 3, under the heading " Appeals out of time ":
"Every Notice of Appeal served after the expiration of the prescribed period of 42 days must be accompanied by a written application for an extension of time, explaining clearly and concisely the reasons for delay in serving the Notice of Appeal."
Such an application falls to be considered and determined as though it were an interlocutory application to the Registrar, who will normally determine the application in the first instance, after inviting and considering written representations from each side. Then there is an interlocutory appeal from the Registrar's decision to a judge. Such an appeal must be notified within five days of the decision of the Registrar so that the correct procedure required, in fact, that the other side, that is to say Mr McGee, should be given an opportunity to make written representations in relation to such an application.We have reminded ourselves of the important principles laid down in United Arab Emirates v Abdelghafar [1995] ICR 65 at page 70 by the recent President, Mummery LJ, as he now is, from which it is clear that the rules are designed to promote the expeditious dispatch of litigation, that they normally must be observed and that an extension of time is an indulgence requested from the Court by a party in default. At the end of the day, of course, we have to reach a decision as to whether, in fairness and justice, although it is so much out of time, we should allow this application.In our judgment in all the circumstances here, we should not allow this application for leave to appeal out of time against the original decision. First of all, there is the lack of merit in the application. Secondly, there is in our judgment a quite inadequate explanation of reasons for the delay. Thirdly, there is the very extent of the delay itself, ie about seven or eight months out of time. Finally there is the prejudice to the Respondent that would be caused by allowing such an application. For all those reasons we find that we must dismiss this application for leave to appeal against the original decision.It is in those circumstances that we have to deal therefore, briefly, with the original Notice of Appeal and the application that is properly before us for leave to proceed to a full hearing, in relation to the review of the remedies decision, relating to the head of compensation of £640 and the sum of £50.26. By his Notice of Appeal the Applicant disputes the finding relating to the loss of use of the car on the ground that Mr McGee did not have a company car and he was simply allowed to use one as a goodwill gesture by the Applicant on condition the he reimbursed the Applicant's petrol costs at eight pence per mile.Secondly, the Applicant maintains that Mr McGee was not available to work on 24 December, as the Applicant emphasise is the case, and that he had good reasons why he was unable to attend the hearing before the Industrial Tribunal on 2 May 1997.In our judgment the Industrial Tribunal were clearly entitled to find, on the evidence of Mr McGee, which was not challenged, as the Industrial Tribunal put it, in terms of veracity, that during his employment he had the use of a motor vehicle and that in order to pursue new employment by way of mitigation of loss he had to use his own car at a cost of £40 per week.In our judgment, in the light of the findings of fact made by the Industrial Tribunal on the remedies hearing and on the review hearing of the remedies hearing, the Industrial Tribunal were entitled to reach this conclusion and made no error of law in so doing.The Industrial Tribunal find, in paragraph 8 of the review decision as we have already noted and we accept, they spent a good deal of time explaining the reason for this award to Mr Esden and also noted the fact that he could not accept the Industrial Tribunal's reasoning but that that was no ground for a review. Again, with regard to the £50 odd for loss of one day's pay the Industrial Tribunal pointed out in paragraph 4 of its review decision that this had been fully argued during the original hearing on liability - see paragraph 8 of that decision.In our judgment there is no possible ground for impugning the Industrial Tribunal's decision on either head of claim in the Notice of Appeal that is properly before us and, therefore, for all those reasons, we dismiss the application for an extension of time for leave to appeal against the original decision and we dismiss the application for leave to proceed to a full hearing of the appeal, against the remedies' hearing having considered and rejected the points in the Notice of Appeal which was put in in time.