MR S HAYDOCK v G D COCKER & SONS LIMITED [1999] UKEAT 1143_99_0812

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 1143_99_0812

Case No Appeal No. EAT/1143/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S HAYDOCKAPPELLANT

G D COCKER & SONS LIMITEDRESPONDENT

Before

His Honour Judge A Wilkie

Date 8 December 1999

[1]APPEARANCES For the Appellant MR LADDIE (of Counsel) ELAAS JUDGE WILKIE QC : We have listed before us a preliminary hearing of an appeal brought by Mr Haydock against a decision by an Employment Tribunal sitting in Manchester which decided that he was constructively dismissed but fairly and that he was not subject to any detriment within the meaning of section 44 of the Employment Rights Act 1996 . That decision followed a hearing held on 23rd April 1999. A summary decision was sent to the parties on 11th May 1999. A request was made for an extended decision, and that was sent on 28th July 1999. The Notice of Appeal which was received by the Employment Appeal Tribunal on 7th September 1999, cites as the grounds for the appeal that:

"The original tribunal allowed no witnesses for the appellant. The witnesses for G D Cocker were allowed to perjure themselves on oath against the appellant. Had the appellant been allowed witnesses he could and would have proved without doubt that he was definitely constructively dismissed unfairly. That he was subject to detriment in the meanings of section 44 of the Employment Rights Act 1996."

[2]Unsurprisingly, given the terms of the Notice of Appeal, the Employment Tribunal Chairman was asked to provide comments, and he did so on 13th October 1999. In that letter it becomes clear that the reference in the Notice of Appeal to "the original tribunal allowing no witnesses" was a reference to applications made by Mr Haydock in February 1999 for witness orders in respect of a Mr Adshead and a Mr Philpot, both of them managers with the respondent company.

[3]It appears from that letter that there was a series of correspondence between Mr Haydock and the Employment Tribunal Chairman, then seised of the issue, which was treated as a series of renewed applications for witness orders, each of which was refused, the last being refused by letter dated 24th February 1999. Each of these refusals would, on the face of it, constitute an order of the tribunal which would carry with it a right of appeal which would have to be commenced within 42 days of the order in question being sent to the appellant. No such appeal has ever been launched.

[4]The Chairman of the Employment Tribunal, Mr Little, makes the comment in the letter of 13th October that at the substantive hearing on 23rd April Mr Adshead did give evidence for the respondent and, indeed, his evidence was referred to in the decision. Mr Philpot was not called by the respondent nor did he give evidence for the appellant. Furthermore, and this does not appear to be in anyway disputed, the appellant did not renew his request for a witness order on 23rd April.

[5]Mr Laddie, who has represented Mr Haydock this morning, under the ELAAS scheme, has extremely helpfully identified for us that the appeal brought by Mr Haydock really is not an appeal against the Employment Tribunal decision arising out of the hearing on 23rd April. That is because there is no point that can be taken, either by way of a criticism of its approach in law or as to the conclusions to which it came on the evidence which it heard. What he does say, however, is that in truth this is an appeal against the refusal by the tribunal Chairman on a number of occasions in February to grant a witness order to require Mr Philpot to attend the substantive hearing of the appellant's case at the Employment Tribunal.

[6]Of the correspondence which is referred to in Mr Little's letter of 13th October, the only document which has been placed before us is a letter dated 18th February from the Regional Secretary of the Employment Tribunal recording the fact that a Chairman has refused what, at that stage, was Mr Haydock's renewed request for a witness order pursuant to a letter from Mr Haydock dated 16th February. It is clear from Mr Little's letter that there may well have been subsequent correspondence after that letter. What Mr Laddie says, and it seems to us with some force, is that on the face of it the test set out by the Chairman as to the hurdles which Mr Haydock had to overcome in order to get a witness order were erroneously set out having regard to the authorities to which reference has been made and, in particular, the case of Davah v Metal Box Co Ltd , a decision of the National Industrial Relations Court in 1974. It appears to be erroneous in two respects. Firstly, it seems to erect a barrier that the evidence is necessary for a full and fair hearing of this claim; whereas the test is one of relevance. Secondly, it seems to omit any reference to the question why it was necessary to issue a witness order for the various reasons which are identified in that early case.

[7]The problem for Mr Laddie is that the 42 days from the order criticised have long since expired. He has, on instructions, been unable to put forward any reason for the delay, beyond the fact that Mr Haydock is a lay person unrepresented. Thus, we are, on the face of it, dealing with an appeal against a final decision, whereas the gravamen of the complaint should be the subject of an interlocutory appeal, which is a long time out of time. The Practice Direction makes it clear that there is a special procedure which has to be undertaken whenever there is an appeal sought to be lodged out of time, Practice Direction 3 in the Practice Direction 1996.

[8]It seems to us that it would be quite wrong for us to purport to deal with an application to lodge out of time an appeal against an interlocutory order which predates by several months the decision which, on the face of it, is the subject of this appeal. As we have indicated, it may be that there is some ground for arguing that there was an erroneous approach by the tribunal Chairman in his original dealing with the application for the witness order. That, however, remains to be seen, as by no means all of the correspondence has been placed before us.

[9]Furthermore, an appeal which, on the face of it, is a long time out of time and where there is no reason for the delay other than that the appellant is not legally represented, may present very substantial problems to an appellant seeking to advance it. That, however, is a matter which ought properly in the first instance, to be considered by the Registrar, having regard to the Practice Direction and having regard to the requirement that there be an articulation of the reasons for the delay. Furthermore, at that stage where the appeal is, on its face, one against the refusal of the witness orders, the full correspondence between Mr Haydock and the Employment Tribunal will come into issue and may well be produced to the Registrar.

[10]Where does this leave the current appeal? As we have said, on the face of it, there is nothing wrong with this tribunal decision at all. If, however, the appeal against the refusal to grant the witness orders were one which were ultimately to succeed, then plainly, the question of the viability of the existing Employment Tribunal decision would fall to be considered. The position in respect of the appeal against the refusal of the witness order has been finally determined, it would be wrong for us either to dismiss this appeal outright at this stage or to pass it to a full hearing of the Employment Appeal Tribunal.

[11]Therefore, we adjourn this hearing on the following terms. Mr Haydock must lodge a properly framed appeal against the decision or decisions in respect of the witness order refusal, which is his true ground for complaint. Manifestly, as that is out of time he must comply with the Practice Direction requiring him to give the reasons for the delay. We will give him 14 days in order to put his tackle in order and lodge such an appeal; if he does not, then it must follow that this appeal must be dismissed.