IMPERIAL CONSTRUCTION (UK) LTD v MR W A BROWN [2000] UKEAT 49_00_0304

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 49_00_0304Case No Appeal No. EAT/49/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
IMPERIAL CONSTRUCTION (UK) LTDAPPELLANTMR W A BROWNRESPONDENT
Before
His Honour Judge CollinsDate 3 April 2000
[1]APPEARANCES For the Appellant MR H MIRSEPASSI Company secretary RESPONDENT MR INNES, counsel (FRU) JUDGE COLLINS: This is the preliminary hearing of an appeal against the decision of a tribunal refusing a request for extended reasons as being out of time. The refusal is contained in a letter from the Employment Tribunal at London (North) dated 16 December 1999 in these terms:
"I acknowledge receipt of your letter of 6 December 1999. A request for extended reasons must be made within 21 days following the issue of the decision. The decision was sent to you on 24 September 1999. I have shown your request to the Chairman who made the decision. He observed that your request is out of time and he has refused to hear it."
[2]Generally speaking this tribunal declines to hear an appeal where there are no extended reasons. A Notice of Appeal to this tribunal is required by the rules to have a copy of the extended reasons attached. We retain discretion to deal with the case on the basis of summary reasons in exceptional cases. In the present case the summary reasons are in our judgment as full and adequate as are required for the nature of the dispute and we are prepared to entertain the case on the basis of the summary reasons. It so happens that the respondent is here today and represented by Mr Innes from the Free Representation Unit who appeared for him below. We have not called upon him today. Mr Mirsepassi who is the company secretary represents the appellants. He is here together with one of the directors, Mrs Nouri, and we have indicated to him that we are prepared to deal with the case today on the basis of the summary reasons and we shall treat today's hearing as the preliminary hearing of the substantive appeal.[3]The decision of the tribunal was given in summary form on 24 September 1999 after a hearing on 16 th of that month. It was the decision of the Chairman alone who held that the appellants Imperial Construction (UK) Ltd were in breach of contract and that Mr Brown the respondent was entitled to damages amounting to £1,855.38 which was calculated in this way: £1,340.00 in lieu of one month's notice – that sum being his net monthly take home pay One week's sick pay of £309.23 and One-third accrued holiday pay in the sum of £216.15.[4]The Chairman made his decision having heard evidence from Mr Brown and Mr Mirsepassi and where there were points of conflict between them he accepted the evidence of Mr Brown. The appeal is based on three separate points: First, it is alleged that the proceedings were unfair because the original respondent was not the company but Mr Mirsepassi, personally. The originating application was presented to the tribunal on a date in July 1999 which is impossible to be precise about because the date stamp is unclear on the copy and is a claim for unpaid wages. It sets out Mr Brown's address and details and it refers to the respondent in this way Name of the employer, organisation or person Mr Tony Passi Address Imperial Construction UK Ltd 39B Tottenham Lane Crouch End London N8 and sets out the nature of the claim. The Notice of Appearance is not in the name of Mr Tony Passi but in the name of H R Mirsepassi. Mr Mirsepassi has explained to us today is that this is his full name and that he is one and the same person. It deals with the complaint on the merits, setting out the reasons why the respondent was dismissed, for poor attendance and poor work performance and that he had been given several notices by the Imperial Construction Management staff verbally. Somebody who we are told is a gentleman who runs the office signed it on 28 July 1999.[5]What happened at the hearing was that the Chairman amended the name of the respondent so as to make it the company rather than Mr Mirsepassi personally. When asked by us this morning what difference it would have made if the company had been the original respondent, Mr Mirsepassi told us that he would have brought facts and figures along that he did not otherwise take, and that he was concerned with himself personally rather than the company. We reject his suggestion that he was concerned about himself personally rather than the company because that it is not reflected at all in the Notice of Appearance where the point is simply not taken. As the tribunal records, Mr Mirsepassi did produce a letter at the hearing which is a copy of the letter of dismissal. He was the company secretary, he armed himself with a company document for the purpose of the hearing and it seems to us that the question of whether or not the original complaint was against him personally or against the company was only a formality. There was no suggestion at the hearing that there was any disadvantage to the company as a result. Mr Mirsepassi has represented the company here this morning as he did the company and himself at the hearing below. He has not persuaded us this morning that the company was prejudiced in any way by the failure to name it originally as the respondent. On the contrary the claim was dealt with throughout in our judgment as if it had been the company that was the original respondent.[6]The next point taken was that Mr Mirsepassi was only supplied with the statement of Mr Brown five minutes before the hearing. He was given time to read it and has not told us today what steps he would have taken in dealing with this claim differently if he had had it in advance. There were no directions or procedures for him to receive a copy of the statement in advance and he knew what Mr Brown's case was because it was set out with sufficient clarity in his originating application. We cannot see that the company was prejudiced by that particular failure.[7]Finally, Mr Mirsepassi criticises the Chairman for encouraging Mr Brown to claim a week's sick pay. While it is quite true that in the originating application there is a specific reference in Box 11 to a failure to give him any pay in lieu of notice or any accrued holiday pay, Box 1 makes a generalised claim for unpaid wages and the first sentences of paragraph 11 makes it perfectly clear that the respondent was off sick at the time that he was dismissed. It seems to us that the terms of the originating application are wide enough to cover one week's sickness pay and that the Chairman might have open to criticism had he not raised it.[8]In all these circumstances, we take the view that there is no reasonably arguable point of law to be found in this appeal and we dismiss it accordingly.