T J FABRICATION LTD v MR MALONEY [2000] UKEAT 234_00_1010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 234_00_1010Case No Appeal No. PA/234/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
T J FABRICATION LTDAPPELLANTMR MALONEYRESPONDENT
Before
Mr Justice LindsayDate 10 October 2000
[1]APPEARANCES For the Appellant MR TREVOR HOGG Representative T J Fabrications Ltd Unit 3 Vulcan Street Middlesbrough TS2 1RJ For the Respondent The Respondent neither present nor represented MR JUSTICE LINDSAY (THE PRESIDENT) I have before me the Appeal of T J Fabrications in the matter of T J Fabrications Ltd v Mr F A Maloney . Below, of course, it was the other way round with Mr Maloney being the Applicant. There were initially 3 Defendants or Respondents: The Secretary of States for Trade and Industry, first, secondly, Tees Dock Fabrications Limited (in receivership) and thirdly, T J Fabrications Ltd (which are called simply TJF ). The Registrar has struck out TJF' s appeal to the Employment Appeal Tribunal for want of compliance with an "Unless" Order.[2]Today Mr Trevor Hogg, a Director's son, has appeared for TJF and has spoken on its behalf. He told me he is authorised so to do and I do not doubt it, and it is quite plain that he feels strongly that Mr Maloney really should not have had an award in his favour and that it is unfair that he did achieve an award in his favour and that Mr Maloney has told lies. But that, as I have sought to explain, is of relatively small relevance to the hearing today, and I will need to set out something of the chronology.[3]On 11 January 2000 there was a hearing at the Employment Tribunal of Mr Maloney's IT1.[4]On 1 February 2000 the decision was sent to the parties accompanied by, (and this is important to note) Summary Reasons only. Mr Maloney was successful in part. He was awarded £4,197 under one heading, £172 under another and £208 under yet another heading, all against TJF .[5]TJF were obviously concerned about that and on 24 February they put a date on a Notice of Appeal and on 28 February that Notice of Appeal was received at the Employment Appeal Tribunal. But, for a proper Notice of Appeal to be lodged and a proper Appeal to be instituted, the Rules provide that Summary Reasons of the Tribunal below are not enough. Extended Reasons have to be given and, where an Appeal is lodged or a purported Appeal is lodged where only Summary Reasons have yet been received, the technique is that the would be Appellant then has to seek Extended Reasons from the Tribunal. On 1 March of this year the Employment Appeal Tribunal wrote to TJF saying that Extended Reasons would be needed and drawing attention to the relevant rule.[6]The letter of 1 March, direct to Mr T Hogg says as follows:
"The Employment Tribunal decision you submitted in support of your appeal is only in summary form, and I should explain that in order for the appeal to proceed here you must file a copy of the extended written reasons of the Employment Tribunal in accordance with the requirements of Rule 3 (1) of the Employment Appeal Tribunal Rules 1993. I would draw your attention to the matter of William Hill Organisation v A Gravas (EAT/645/88) in which the Employment Appeal Tribunal stated that without extended reasons an appeal cannot properly continue, and upon appeal to the Court of Appeal the view of Employment Appeal Tribunal was upheld. The time for applying for the extended written reasons is set out in the Explanatory notes sent with the Employment Tribunal decision. In the event of your request for the extended written reasons being refused, you may make an appeal to the EAT against that refusal. The appeal must be made within 42 days of the date of the refusal letter and be supported by a copy of the refusal letter. The matter will then be set down for a preliminary hearing. You should enclose a copy of this letter when making your application to the Employment Tribunal."
[7]It was thus explained to TJF what they needed to do, but, so far as one can tell, they did not apply to the Employment Tribunal and certainly nothing was heard by the Employment Appeal Tribunal. Had a letter been written to the Employment Appeal Tribunal saying:
"I have not understood your letter." or "
What on earth do we do now?", no doubt the matter could have been taken further, but nothing was heard. As nothing was heard, on 29 March the Employment Appeal Tribunal made an "Unless" Order as it is called and it says:
" IT IS ORDERED that unless confirmation in writing is received within 7 days from the date of this Order that an application has been made to the Employment Tribunal for the extended reasons for the Decision the Notice of Appeal would be struck out"
It was dated 29 March 2000 and was sent to Mr T Hogg for the Appellant, to Mr F A Maloney the Respondent and also it went off to the Central Office of Industrial Tribunals.[8]That was 29 March. Still nothing was heard from TJF at the Employment Appeal Tribunal. Again, had Mr Hogg or TJF written in to say: 'What on earth do we do? We have not understood what to do." or something on those lines, the matter would have been taken forward, but nothing was heard.[9]On 6 April therefore, the Employment Appeal Tribunal made a further Order and it reads as follows:
"AND UPON THE failure of the Appellant to provide Extended Reasons in respect of the aforesaid decision in accordance with EAT Rule 3(1)(c) AND UPON the failure to lodge a Notice of Appeal against the Employment Tribunal Chairman's refusal to supply extended reasons despite being requested to do so by letter dated 1 March 2000 AND UPON the failure of the Appellant to comply with the EAT Order dated the 29th March 2000 IT IS ORDERED that the aforesaid lodged Notice of Appeal be struck out."
[10]I have difficulty understanding that Order because, so far as I can see, there has been no refusal by the Employment Tribunal Chairman to supply extended reasons. I have no papers to suggest any application was made at all to the Employment Tribunal to supply extended reasons.[11]On 7 April a sealed copy of that Order of 6 April was sent to TJF . On 12 April TJF indicated that it had not received the sealed copy Order until the 11 April and that it wished to appeal against the Order of 6 April.[12]On 3 May the EAT asked TJF to supply the IT1 and the IT3, that is to say Mr Maloney's original complaint and TJF 's original answer to it, so that the matter could be properly considered. They said on 3 May: "The matter will be listed for hearing before a Judge (sitting alone). The Listing Officer will notify all parties in due course regarding a date for the hearing. To expedite the listing of the appeal you should provide this Court with a copy of the IT1 Originating Application and the IT3 Notice of Appearance. Still nothing was heard.[13]On 19 May the Employment Appeal Tribunal again asked could it have a copy of the IT1 and IT3 but still nothing was heard. Mr Hogg draws to my attention that, although it is not in my papers, there was an answer to the request of 19 May.[14]As I have gone through the chronology therefore, in 2 respects the position is not as it would originally have appeared to be. First of all, there is the curiosity that the Order of 6 April recites that the Employment Tribunal Chairman had refused to supply extended reasons and that, so far as I can tell, is a recital that has no basis. Certainly it has no basis in the papers in front of me. Secondly, the papers omit the answer that Mr Hogg says was given to the Employment Appeal Tribunal's letter of 19 May. This does provide some material for a view that there has been a confusion in this matter.[15]It is plainly open to a Court to strike out an appeal where there is, as seemed to be the case, an unexplained and cavalier disregard of the requirements of due process. But where the Employment Appeal Tribunal itself is causing confusion, or fails sufficiently to inform the Tribunal of the true position it seems to me that one can take a rather different attitude to the disregard that has been shown. Certainly lately TJF has been more alive to the need to answer where it is the recipient of a request to act or to supply information. I do not want TJF or Mr Hogg to think that simply to say that Mr Maloney was a liar is going greatly to assist them, because appeals can only go ahead if errors of law are illustrated and, of course, it is for the Employment Tribunal to decide whether a party is telling the truth or not. Merely to urge that a party is a liar is of no great assistance at the Employment Appeal Tribunal. But simply dealing with the issue of whether it would be right to undo the striking out, given the confusion in the papers and the inadequacy of the papers in the sense that Mr Hogg and TJF 's final response is omitted, it does seem to me appropriate to undo the striking out that the Registrar ordered.[16]Mr Hogg and TJF must realise that still it is inadequate for the appeal to go ahead on Summary Reasons only. As the letters have explained, there will need to be an immediate approach to the Employment Tribunal asking for extended reasons and, if they are refused, there will then have to be an appeal to the Employment Appeal Tribunal against that refusal.[17]This time round I hope Mr Hogg realises that it is not good enough to sit back and do nothing and that if there is true confusion or doubt in his mind, the important thing is to write a letter asking for assistance and asking to have matters explained. To sit on one's thumbs doing nothing, which seems to have been the position at any rate in the early part of the chronology, is just not good enough. But, dealing again solely with the matter in front of me, I undo the striking out Order and the appeal, therefore, can be revived in the way that I have indicated.