BENNETTS’S ECO INVERTER LTD v MR S C BREWER [2000] UKEAT 641_00_2711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 641_00_2711Case No Appeal No.PA/641/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BENNETTS’S ECO INVERTER LTDAPPELLANTMR S C BREWERRESPONDENT
Before
Mr Justice LindsayDate 27 November 2000
[1]APPEARANCES For the Appellant Mr R H Bennett Managing Director on behalf of the Appellant For the Respondent The Respondent in Person MR JUSTICE LINDSAY (PRESIDENT) This is an appeal by Bennetts's Eco Converter (Environmental Services Ltd) in the matter between that company and Mr S C Brewer. The Company appeals against the Registrar's Order refusing to extend time for the Company's Notice of Appeal, which was lodged 175 days out of time.[2]Before me today I have had Mr Bennett speaking for the Company; he is a director of the Company. The Applicant below, Mr Brewer, has been here in person. On 6 May 1999 Mr Brewer presented an IT1 for "wages owed (Wages Act)" - it was a claim for some £1,963 odd.[3]There was no IT3 lodged in time on the Company's part, which therefore, under the rules, enabled the Employment Tribunal to proceed without hearing the Company, although, had the Company attended, no doubt something, at least, would have been said on its behalf, and no doubt some attention would have been paid to it.[4]On 7 October there was a hearing at London North before Mr M S Rabin, sitting alone, and, as it transpired, no one attended for the Company. Mr Bennett had sought an adjournment, but because no IT3 had been put in the Company had no automatic right to appear and the adjournment had not been allowed.[5]On 15 October 1999 the decision was sent to the parties. It was:
"The decision of the Tribunal is that the Applicant is entitled to the sum of £1,963.88 in respect to wages unpaid during his employment with the Respondents, and the Respondents are therefore ordered to pay the sum of £1,963.88 to the Applicant"
. The Tribunal said:
"5.Mr Bennett was informed by letter from the Tribunal that as the case was marked ANE," and that stands for 'Appearance not Entered' "he did not have the right to be heard on 7 October 1999 and therefore the case would proceed in his absence" and that is what happened. The Tribunal said: "6 Mr Brewer has attended before me and produced a set of wages documents that he prepared himself while he was in the Respondents' employment. These confirmed the figures which are set out in full in his Originating Application. I have no reason to doubt that Mr Brewer's claim is accurate and correct and it is apparent from the correspondence that Mr Bennett has had ample opportunity to challenge the figures if he thought otherwise."
[6]That decision was sent to the parties on 15 October 1999 and it is the sending out to the parties that sets time running for the 42 days during which an appeal might be lodged. That 42 days expired on 26 November 1999. However it was not until 19 May 2000 that a Notice of Appeal was received by the Employment Appeal Tribunal. Box 6 of the Notice of Appeal which is the box in which the Appellant is required to state the grounds on which he or it intends to rely, says this:
"It is my belief that the fact that I was not present to defend these allegations due to very cogent reasons means that I am denied natural justice in terms of not having the opportunity to defend the action. It is now apparent that the case brought by Mr Simon Brewer was premeditated and the evidence presented to the Tribunal incorrect. Mr Brewer has sought to use the Tribunal for his own ends"
Well, that was the Notice of Appeal which, as I mentioned, was 175 days out of time.[7]On 22 June there was an application for an extension of time, signed by Mr Bennett as a Director of the Company and Mr Bennett tells me today that the Company took advice from a representative in relation to the drawing up of that document, and, indeed, it looks as if that is the case.[8]On 15 August 2000 the Registrar made her Order, and it said, inter alia, this:
"AND UPON FURTHER CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS with special attention paid to 71C " "there is no excuse, even in the case of an unrepresented party, for the ignorance of time limits"
IT IS CONSIDERED that there has been shown no exceptional reason why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993. IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused."[9]On 17 August the Company indicated it would appeal against the Registrar's Order. On 8 November, just a few days ago, Mr Bennett wrote a letter making a personal attack on Mr Brewer, he said:
"I wish to add further evidence in support of our claim against the above named person that whilst employed by Bennetts's Eco Inverter Ltd, Mr Brewer did intentionally and deliberately damage our computer software and equipment by its abuse and unlawful use. He did contaminate the memory and database with pornographic nudities and racist slogans, as per the narrative expressed in my former statement."
That, I think, brings the position up to date. Although at one point in the papers Mr Bennett is described as self-employed he obviously has a connection with the Company. He is listed on its writing paper as its Chairman and I take it that he is Director of the Company.[10]He submitted a medical report with his application for an extension of time - it is that that describes him as self employed. In it by way of heading, 'Summary and Conclusions', the doctor says:
"Royland Bennett is a 57 year old gentleman who was involved in a serious road traffic accident on the afternoon of the 1 st February 1999. As a direct consequence of his accident he has suffered from pain and stiffness in his neck and lower back, which continues to trouble him. In my opinion his symptoms are due to a soft tissue injury affecting the neck, cervical and lumbar spine. This involves muscles and ligaments. I can find no evidence of any damage to vertebrae, spinal cord, cauda equina or nerve roots. The claimant has not suffered from any situational anxiety as a result of the accident"
. Prognosis The claimant has a good prognosis. I do not believe his ability to perform his usual job, or any other he may attempt in the future will be affected as a result of this accident." Well, that seems to provide no medical reason for delay in October or November 1999 or thereafter. It does not, in other words, greatly assist Mr Bennett or really assist him at all. He also says he has been in Jamaica for personal reasons, which one naturally respects, concerning the health of his mother or father, or both, and illness and death.[11]But one has to remember that the Respondent here was not Mr Bennett but was a company. Even a small company has to have a constitution such that it has directors, and his personal ability to attend because of needing to be in Jamaica provides no convincing reason why the Company should not have lodged a Notice of Appeal. The Company's writing paper indicates that there is one other Director, 'N D A Bennett', who Mr Bennett tells me is also out of the country, but if a company arranges it affairs so that both of its directors or all of its directors are out of the country at the same time, well then, really, it cannot blame anyone but itself for the disabilities that fall to it. I do not know what the position was about other employees in the company.[12]A company, in the ordinary way, seek advice from solicitors and representatives. Mr Bennett tells me that the company could not afford legal or qualified advice, but, on the other hand, it is quite plain that it consulted Fastrack Legal Services in respect of the medical report from which I have quoted, and that it was able to pay for advice, or at any rate, obtain advice in connection with the drafting of the Respondent's application for an extension of time for the appeal dated 22 June 2000, and there is no apparent reason why, if the company could afford that, it could not have afforded advice and drafting in respect of a Notice of Appeal.[13]A delay as long as this, 175 days, can be expected to require a very convincing explanation of how that delay came to pass. Only two reasons have been given: the ill health which I have mentioned as being of no help to Mr Bennett or to the Company, and his absence, which, for the reasons I have given, seem to me no impressive reason for delay.[14]Another director could have been given the task; another employee, if there was one, could have been given the task, or perhaps, most importantly, a legal adviser or representative could have been given the task of lodging a Notice of Appeal in good time. It seems to me there is no acceptable reason here for delay, and hence no ground upon which an extension of time might be granted. In the case Aziz -v- Bethnal Green in the Court of Appeal, it became apparent that the Employment Appeal Tribunal adopts a fairly strict line, perhaps stricter than the Court of Appeal does, in relation to applications for extension of time to lodge a Notice of Appeal. But nothing in that case disapproves the strict line that the Employment Appeal Tribunal consistently takes, and in any event, here we are not dealing with a case where the delay is one or two days, but 175 days. The very convincing explanation of delay which would be needed to justify a delay of such a length has not here been apparent, and, as I indicated, there seem to be no good grounds for extending time, and accordingly, I must dismiss the appeal.