Neal v O’Hare [1998] UKEAT 933_98_0111

EAT
Neal v O’Hare
[1998] UKEAT 933_98_0111 · 1998-11-01

JUDGE D PUGSLEY :

This is a case where we were asked to determine at a preliminary hearing whether there is an arguable ground of appeal.The Appellant, Mr Neal, sent a ground of appeal dated 16 June 1998 but it was not received by the Tribunal until 22 June, according to one stamp, and 30 June according to another. By our letter dated 2 July 1998 the Registrar wrote to the Appellant saying:
"...it is not clear from your letter what is being appealed.
If the Appeal is against the Substantive Decision sent to the parties on 8 April 1998 it is out of time...If the Appeal is against the Review Decision sent to the parties on 12 May 1998 the Appeal is in time and the Substantive Decision will be included in any court bundle. As your letter contains allegations of bias you must submit a sworn affidavit in accordance with paragraph 9 of the Practice Direction.Would you please confirm within 7 days of the date of this letter what is being appealed against."On our copy of that letter is appended the words:
"Phone call from Mr Neal who confirms the appeal is against the Review Decision sent to the parties on 12 May 1998."
The background to this case is that at a hearing on 3 April the Employment Tribunal sitting in Truro heard a complaint by an Applicant that she had not received certain sums due to her. The case was heard on 3 April and, with commendable promptness, the decision was promulgated on 8 April. The decision was that the Respondent (the Appellant in this case) should pay the Applicant the sum of £182.00 in respect of outstanding wages, by paying the whole of that sum directly to the Applicant or, alternatively, paying the tax and national insurance due on that sum to the Inland Revenue and the balance to the Applicant.In the concluding paragraph of the Tribunal's judgment, the Chairman, Mr Brian Walton, says:
"I appreciate the respondent is in difficulty today because of the absence of a witness who has a hospital appointment and I have looked at the statement from the witness but that seems to me of no assistance on this particular point. If he is able to bring a witness who will give sworn evidence to the fact that the applicant was simply not there on those dates I will consider a review of this case but I think it is sensible to make a decision today rather than adjourn it for further evidence."
Thereafter, the Respondent, Mr Neal, sent a long, type written reply under the heading 'Respondent's Response to the Decision of the Industrial Tribunal'. That was sent, inter alia, to the Employment Tribunal. We have had the comments of the Chairman of the Industrial Tribunal by letter of 17 September 1998 in which he points out that the allegations made that he did not give Mr Neal an opportunity to cross-examine were based on a misunderstanding by Mr Neal.The Chairman viewed the Respondent's response to the decision of the Industrial Tribunal as an application for review; it being received on 12 May 1998. He declined to exercise his powers and he said this:
"14 days is provided by Rule 11 of the Industrial Tribunal Rules of Procedure 1993. The application is substantially out of time and no reason is given which might justify the extension. The possibility of a review was raised in the final paragraph of the decision but not taken up in accordance with this suggestion. The Respondent was not refused the right to cross examine, he began to do so but clearly was unable to appreciate the requirement to ask questions rather than give evidence. Accordingly I suggested he tell me his side by way of evidence and delay any questioning of the applicant. An opportunity was given before the decision made for any further questioning but was not taken up."
We bear in mind that the appeal against the substantive decision was out of time. We can see error of law in the Tribunal Chairman treating the document 'Respondent's Response to the Decision of the Industrial Tribunal' as a document which could be taken as being an application for review. The Chairman was perfectly entitled to take the view that the application was out of time and, further, to take the view that the matters which were raised were not matters which were susceptible to review. The issues raised about the way in which the matter was dealt with would be more a matter of appeal to this Tribunal than an application for review to the original Employment Tribunal. However the appeal to this Tribunal was out of time.We ought to say that the Appellant, as he is perfectly entitled to, has not attended but we have looked at the letter he sent setting out his skeleton argument. We see no basis at all for allowing this appeal against the refusal to review the case and we dismiss this appeal.