MR & MRS ELLIOT v MRS T PINK [1999] UKEAT 614_98_0107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 614_98_0107Case No Appeal No. EAT/614/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR & MRS ELLIOTAPPELLANTMRS T PINKRESPONDENT
Before
His Honour Judge D M LevyDate 1 July 1999
[2]APPEARANCES For the Appellants MR C HENNEY (Solicitor) Messrs Henmans Solicitors 116 St Aldates Oxford OX1 1HA For the Respondent IN PERSON JUDGE LEVY QC: This is an appeal by Mr and Mrs Elliot ("the Appellants") against a decision of an Industrial Tribunal sitting at London South on 2 February 1998. Then on an application by Mrs Pink, the Respondent to the appeal ("the Respondent"), the unanimous decision of the Tribunal was(i) that the Respondent's application for extension of time to enter a Notice of Appearance was refused,(ii) the Respondent was debarred from resisting the claim,(iii) the Tribunal held that the Respondent was discriminated against on the grounds of sex, and(iv) it ordered that the Appellants pay the Respondent the sum £1,663.50 forthwith. The grounds on which we have heard this appeal is limited to the first ground of appeal namely that it was wrong for the Tribunal to refuse leave to the Respondent to extend the time for entering a Notice of Appearance. The reason we have not determined the other grounds of appeal raised by the Appellants is that if that part of the appeal succeeds, clearly there has to be a rehearing. If the Respondent had not been debarred from resisting the claim, the result of the Appellants' claim would have been different. Below, Mr Elliot represents himself and his wife. One Respondent also appeared in person. Today, Mr Henney represents the Appellants. The Respondent again appears in person. It is necessary to give a little background to the appeal. The application of the Respondent for relief was received by an Employment Tribunal on 10 October 1997. She complained of automatic unfair dismissal, sex discrimination and wrongful dismissal. The dates of employment were shown as 16 May 1996 to 3 October 1997. She had in fact been employed as a nanny to the two children of the Appellants. She was going on maternity leave and her claim rose from what happened at the end of her employment and thereafter.[3]On receipt of the Respondent's application, forms were sent in the usual way by the Tribunal to the Appellants. As we now know, the Appellants returned a Notice of Appearance not to the Tribunal but to ACAS and because of this error, it was not received on the due date. The appropriate rule for Notices of Appearance is found in the Employment Tribunal Constitution Etc Regulations 1993, rule 2 of schedule 1, which provides for the sending of the application to a Respondent. Rule 3 says this: "(1) A Respondent shall within 21 days of receiving the copy of the Originating Application enter an appearance into the proceedings by presenting to the Secretary a written Notice of Appearance …" and it sets out what it has to say.[4]Not having received Notice of Appearance from the Respondent, the Tribunal sent to the parties a Notice of Hearing; the notice which was sent under the Industrial Tribunal Rules of Procedure 1993 as amended, at page 35 of our bundle. In a standard box within limits to draw attention to it, there is this paragraph:
"Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds and any other unavailable dates in the six weeks following the above hearing date."
The "above hearing date" was shown as 2 February 1998 at 10.00 am. The notice was sent to both parties. On that sent to the Appellants, under the last line of their address in type, which can, we think, truly be called small, it said "for your info. only". Mr Elliot gave evidence to the Tribunal that he had not noticed this.[5]When the matter was called for hearing on 2 nd February 1996, the Tribunal took the point that no Notice of Appearance had been entered and said this in the extended reasons sent to the parties on 12 th February 1991:
"1. This application came before the Tribunal the Applicant claiming unfair dismissal/sex discrimination wrongful dismissal and claiming an entitlement to payment for accrued holiday not taken. The Originating Application in this matter was presented at the Tribunal on the 10 October 1997."
Paragraph 3 dealt with the sending of the Application to the Appellants and the fact that no Notice of Appearance was received from him. The Reasons continue:
"The Respondent was sent a copy of the Notice of Hearing marked "
For your information only". Mr Elliot attended at the hearing and made application for an extension of time in which to file the Notice of Appearance. The defence Mr Elliot told the Tribunal that the had faxed a copy of the Notice of Appearance to the Tribunal on the 26 October 1997 and he produced a copy of the Notice at the Tribunal. Mr Elliot confirmed that the fax was sent on the 26 October 1997 in the evening it was on a Sunday. He could produce no fax transmission document." It is not very surprising that he could not produce a fax transmission document if he was not to know that the point was going to be taken against him on that day. "6. The Chairman called for the Tribunal's fax records for the 25, 26, and 27 October 1997. The records comprise first the automatic printout which is made by the fax machine at regular intervals after so many transmissions have been made and the manual record which records receipt of all faxes into the Tribunal. The records revealed no fax having been received on the 24, 25, 26 or 27 October 1997 from the Respondent. 7. Mr Elliot also told the Tribunal that on the 27 October 1997 the day following the date on which he says the Notice of Appearance was sent that he spoke to a clerk at the Tribunal who confirmed that the Notice had been received. An inspection of the Tribunal file revealed no record of a telephone conversation with Mr Elliot. It is a strict rule that staff record a note of conversations on the file. 8. Considering all of the evidence the Tribunal do not accept Mr Elliot's evidence that a Notice of Appearance was sent as claimed. We found Mr Elliot disingenuous as a witness. The Tribunal are not prepared to extend the time for the Respondent to file a Notice of Appearance and the Respondent is therefore barred from defending the proceedings." The Tribunal then went on to determine the matter in that permitting the Appellants to take stock in the appearing and gave judgment as we said for the Respondent.[6]Before coming back to the main point of the appeal, we will continue with the history. After the extended reasons had been sent to the parties on 12 February, the Appellants, by Mr Elliot, applied by letter dated 12 March for a review of the decision in a letter in which he sent the fax printout of copy Notice of Appearance, which showed that it was sent to ACAS and not to the Tribunal. There was an application for a review of the decision which the Chairman refused in a short decision dated 26 March 1998. About that time an appeal form was sent to this Tribunal by the Appellants and the President directed that an affidavit be sworn by them in support of what they alleged and Mr Elliot swore an affidavit on 31 March 1998.[7]There was a hearing on the PHD procedures on 7 October 1998 when Mr Henney, a solicitor, appeared for the Appellants under the ELAAS scheme and the Tribunal apparently gave leave for the Appellants to submit a Notice of Appearance and gave leave for the Appellants to amend the Notice of Appearance within 14 days which was done. The order incorrectly described Mr Henney as of Counsel, rather than being a solicitor giving valuable assistance on the ELAAS scheme.[8]In the hearing before us this morning, Mr Henney has drawn attention to an unreported decision of this Tribunal, EAT/240/81 when a panel headed by the President of the Employment Appeal Tribunal Browne Wilkinson J as he then was, considered what should be done when an appearance was not entered in time. At page 2 of the judgment, Brown Wilkinson J President drew attention to the decision of Ryan Plant International v Price (1976) ICR 424, where Phillips J has said that the proper approach where no appearance had been entered was this:
"I have had cited to me, and reliance is placed on Atwood v Chichester (1878) 3 QBD 722 and I accept that, as a general principle, where a party is in default, as a result of which perhaps a judgment has been given against him, and even more so when the only default is in failing to enter an appearance, he ought to be relieved from his default, if that can be done with justice to everybody concerned. One therefore has to weigh up the whole of the circumstances."
[9]It is apparent from the extended reasons that the Chairman did not look into the whole of the circumstances. He did not consider whether the proceedings would go ahead without any unfairness to the Respondent if the Appellants time for entering appearance was extended. It is apparent to us, because we have been shown the correspondence which took place between the parties, that in issue went in questions of fact which were adumbrated in that correspondence. It seems to us that with both litigants in person, the Tribunal could well have had a contested hearing on that day, had leave to extend time for entering appearance had been given. It might be that the Respondent would have asked for a little time to consider the position and, if there had to be an adjournment, she would have been entitled possibly to an award of costs. But what certainly did happen was that the Tribunal did not weigh up all the circumstances in which the application for an extension of time for an appearance was made even without the knowledge that came later, that the Appearance form had been sent by the Appellants to the wrong fax number.[10]It seems to us that justice was not done by the Tribunal to the Appellants on 2 nd February 1994 and that there was a serious error in refusing leave to the Appellants to extend time on that day. That having occurred, the only course we can properly take is to allow this appeal and send the matter back for a rehearing for a differently constituted Tribunal. As we understand it, extension of time had been given to the Appellants so far as the appeal is concerned. Accordingly, we set aside the order of the Tribunal made on 2 February 1998, extend the time of entering a Notice of Appearance by the Appellants, order that a Notice of Appearance presented to this Tribunal be treated as their Notice of Appearance; order a rehearing as soon as possible before a differently constituted Tribunal.