DAN'S CAFE (A PARTNERSHIP) v (1) MRS B BOZKURT (2) MR H MOUSTAFA [2001] UKEAT 0174_01_1209

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0174_01_1209Case No Appeal No. EAT/0174/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DAN'S CAFE (A PARTNERSHIP)APPELLANT(1) MRS B BOZKURT (2) MR H MOUSTAFARESPONDENT
Before
Mr Recorder LangstaffDate 12 September 2001
[1]APPEARANCES For the Appellant MRS K SAWYER (Of Counsel) Andersons 871 High Road North Finchley London N12 8QA MR RECORDER LANGSTAFF QC We have before us by way of Preliminary Hearing an appeal from a decision of the Employment Tribunal sitting at London Central, summary reasons for which were given on 28 July 2000. By those reasons the Employment Tribunal rejected firstly the employer's application to enter a late Notice of Appearance (they proceeded to hold that the employer had broken the contract of employment with the employee, who happened to be his wife, by failing to pay a sum amounting to £10,890 and ordered payment of that sum). Secondly, the Employment Tribunal held that the employer had refused to permit the employee to have paid holiday pursuant to the Working Time Regulations and ordered in respect of that that he should pay £1,328.57 compensation. The Employment Tribunal reached those conclusions having heard evidence from the employee which it accepted.[2]We have before us on paper a Notice of Appeal which seeks to argue the merits of the decision. However, as Miss Sawyer, who appeared today, but I should emphasise did not appear below, has accepted in the course of submissions, that any argument as to the merits of the case falls away if in fact the Employment Tribunal correctly exercised its discretion not to extend time for service of the Notice of Appearance by the Respondent. There is however no appeal on paper as to that part of the Employment Tribunal's decision.[3]Next the appeal comes before us to be argued upon Summary Reasons. This Tribunal requires there to be Extended Reasons before it will entertain an appeal. Today, at the outset of her submissions, Miss Sawyer therefore applied for an order by this Tribunal allowing an appeal against the refusal to give Extended Reasons which were refused on 18 August 2000. She points out with some force that the basis for that refusal was the self-same basis as the refusal to extend time for service of the Respondent's notice and invited us to permit her to raise that appeal coextensive with her appeal against the decision which the Summary Reasons represented. Because of the deficiencies in the written Notice of Appeal she had further to apply to us for permission to amend the Notice of Appeal to include an appeal against the refusal to extend time. Thirdly, she recognised that the Appellant was handicapped because there had been a complete failure (despite the fact that he is now represented by solicitors) to comply with paragraph 16 of the Practice Direction relating to appeals to this Tribunal, sub paragraph 2 of which says:
"2 The Appellant will not be permitted to pursue the appeal unless the EAT is satisfied at the preliminary hearing that – 1 there is a good excuse for failing to enter a Notice of Appearance and (if that be the case) for failing to apply for such an extension of time; and 2 there is a reasonably arguable defence to the claim in the Originating Application." and goes on to require in sub paragraph 3: "3 …… the Appellant must swear and lodge with the EAT an affidavit explaining in detail the circumstances in which there has been a failure to serve a Notice of Appearance in time or apply for such an extension of time, the reason for that failure to do so and the facts and matters relied upon for contesting the claim on the merits. There should be exhibited to the affidavit all relevant documents and a completed draft Notice of Appearance (IT3)."
[4]We have no affidavit, perhaps as a consequence of the short notice which the Appellant's solicitors have had to prepare for this appeal. We have only a copy of two statements, one by the Appellant and one by a Mr Halil Moustafa. Unfortunately those statements as presented to us are in draft. His is plainly not in the words of the Appellant himself, although no doubt it was prepared upon his instructions, and they seem to us to fall far short of the requirements of Rule 16 of the Practice Directions.[5]We determined nonetheless to hear what Miss Sawyer had to say that might falsify the exercise of the discretion by the Employment Tribunal. We have to bear in mind, however, that the reasons given were Summary Reasons only.[6]The Rule which applies is Rule 3 of the Employment Tribunal Rules . That provides by sub rule 1 that:
"1 A respondent shall within [21 days] of receiving the copy of the originating application, enter an appearance to the proceedings by presenting to the Secretary a written notice of appearance [I miss out the irrelevant words] [ and by sub paragraph 2] 2 A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except – (a) to apply under rule 15 for an extension of the time appointed by this rule for entering an appearance;"
There are other limited aspects in which someone who had not entered a notice of appearance may be permitted to take part in the proceedings. Rule 15(1) provides that "(1) A chairman may, on the application of a party or of his own motion, extend the time for doing any act appointed by or under these rules (excluding this rule) and may do so whether or not the time so appointed has expired. (2) An application under paragraph (1) shall be made by presenting to the Secretary a notice of application, which shall state the title of the proceedings and shall set out the grounds of the application." I need perhaps hardly add, consistent with the history which I have thus far given, that there was, it appears, no such notice of application.[7]Nonetheless the Tribunal benevolently heard Mr Bozkurt. At paragraph 3 of the Summary Reasons the Tribunal set out what they were told. They say:
"The Originating Application was sent to Dan's Cafe [that is the Respondent] by the Tribunal on 28 April 2000. The Respondents did not enter an appearance to that complaint and the case was listed for hearing "appearance not entered" by a notice of hearing sent on 23 June 2000. By letter of 16 June 2000 the Tribunal notified the Respondents of that position. Today on 21 July 2000, Mr Bozkurt has appeared before the Tribunal on behalf of the Respondent partnership asking for leave to enter a late Notice of Appearance. The Tribunal considered his application in the light of rule 3 of the Employment Tribunals Rules of Procedure 1993 [which I have just quoted] . Mr Bozkurt told us that in June he had consulted a solicitor and that he knew all about the proceedings. However he told us that his solicitor had not taken the Tribunal proceedings seriously, he had not entered an appearance but that his solicitor had suggested he attended the Tribunal today."
The Tribunal went on to observe:
"….. that Williams & Co, [who were then Mr Bozkurt's solicitors] were aware of the proceedings and indeed wrote a letter dated 4 July 2000 which confirms that Mr Bozkurt knew about the proceedings at that stage. There has been no suggestion from Mr Bozkurt that he did not know that the proceedings had been started."
They then went on to describe the exercise of the discretion in these terms:
"The Tribunal considered the position and decided to refuse leave to enter a late Notice of Appearance. There has been no proper explanation for the failure to enter an appearance. It seems to us that it was reasonably practicable to have done so and we in the exercise of our discretion decide that we should not grant leave."
[8]Miss Sawyer has submitted that the approach to be taken by a Tribunal was considered by this Tribunal in the case of Kwik Save Stores Ltd v Swain and Others [1997] ICR 49. That, she submits, requires an Employment Tribunal to look not only at the explanation for the delay but also the balance of the prejudice to each party caused by the decision to allow or refuse a late entry of the Respondents' appearance and the merits of the defence. Miss Sawyer says, with force, that a consequence of a refusal to entertain a late notice of appearance is that the Respondent is effectively debarred from taking part in the proceedings and is at the mercy of whatever evidence may be given by the Appellant. This, she notes, puts him at such a disadvantage. Article 6 of the European Convention of Human Rights may be applicable. Miss Sawyer concedes that the rule itself which is contained in Rule 3 of the Procedure Rules is not, and cannot properly be alleged to be, a breach of Article 6, but that a Tribunal should have had regard to the application of the rule, given the draconian circumstances if they should decline to exercise their discretion to extend time, and should therefore have balanced the degree of prejudice to each party. What saves the rule from falling foul of Article 6 is indeed the opportunity that exists within its scope for a Tribunal to exercise a discretion and therefore to allow, in an appropriate case, for an extension of time, which a hard and fast time limit permitting of no such extension would deny.[9]Miss Sawyer has submitted to us that Mr Bozkurt was under two handicaps. First, he had no proper advice as to employment law or consequences before the Tribunal. This is for two reasons; first, his evidence is now that he did not know that the proceedings were on foot until very much the last minute. His draft statement would indicate a very different picture from that reflected by the Employment Tribunal's decision. It says that it was only when his solicitor telephoned him two or three days before the hearing that he realised that there was such a hearing on 21 July 2000 and attended unrepresented. Secondly, Miss Sawyer points out, that the solicitor was a solicitor engaged by Mr Bozkurt to advise him in respect of his matrimonial affairs and was not someone who was experienced in employment law. The second handicap was that, although Mr Bozkurt's English is competent, it is not fluent and he may have difficulties with comprehension. This is reflected indeed by his draft statement suggesting that he may have said that he was aware of the threat of proceedings but not of their actuality and that the Tribunal had misunderstood this in the course of their Summary Reasons.[10]We have come to the conclusion that there is no arguable ground on which this case should proceed further. We do so for a number of reasons, many of which are independent one of the other.[11]First we have to consider whether it is appropriate for us to give leave to amend the Notice of Appeal. We think that what is relevant in this respect is whether the Appellant has had a reasonable opportunity to consider the decision of the Employment Tribunal and to frame his appeal appropriately. We note that in the grounds of appeal he makes specific reference to a case reported in the Industrial Relations Law Reports. Some consideration, legally informed, has plainly gone into the notice which he has drafted.[12]We decline to exercise our discretion to permit, at this last minute stage, to allow the Notice of Appeal to be amended in some as yet unformulated manner, to permit a very different appeal to be run, that is an appeal against the decision of the Employment Tribunal to refuse to extend time. It follows that we also decline permission to add an appeal against the decision of the Employment Tribunal to decline to give Extended Reasons. That was something which was known about, was the subject of complaint by the Appellant and we see no good reason, nor has one been advanced to us, why that appeal has not been raised beforehand. We do not think, whatever Mr Bozkurt's difficulties with understanding English, that that required such a command of English that he was disadvantaged in a way which would affect the exercise of our discretion.[13]That would be sufficient of its own for us to say that there is no basis on which this appeal should go forward, but in any event we have considered what the position was of the Tribunal. We are conscious here that we are dealing with Summary Reasons. Had we been faced with Extended Reasons we would have expected to see in them a reflection of the principles which Miss Sawyer has referred us to and which are set out in Kwik Save . However, in this particular case what was of the greatest importance amongst those matters would seem to us to be the reasons for the delay. Where a Tribunal is told that the Tribunal proceedings are not taken seriously, and it is for that reason that an appearance is not entered, we think it would require the most cogent of reasons for them not to decline to exercise their discretion. In any event, the exercise of the discretion was for them, and harsh though it may be, and draconian those consequences may be, we cannot see that this Tribunal would have any right to interfere with that discretion, absent a misdirection of law.[14]Although Mr Bozkurt has indicated that he may well be in a position to provide sworn evidence that he did not know until a very short while before the proceedings that they existed at all, the Tribunal were, we think, fully entitled to proceed on the best information available to them and indeed could do nothing else. That information was that he had known, did know, that proceedings had started. That is entirely consistent with the letters from Williams & Co, a copy of which Miss Sawyer has shown us, and which confirmed that although they may not have known the details of the proceedings they certainly were, or appear to have been aware, of their existence.[15]Moreover, any consideration of the merits of the case would have come to the irresistible conclusion that here Mr Bozkurt was seeking to argue that his estranged wife should not succeed in her claim because she was working illegally. It would follow that he had illegally employed her and would have been setting up his own illegality as a defence to her claim. This we suspect would have proved deeply unattractive. Accordingly, we cannot see that the Employment Tribunal were in error in the way in which it exercised its discretion.[16]Finally, we appreciate Miss Sawyer's frankness in the best traditions of the Bar in drawing us to matters which may tell against the application. The requirements of Rule 16 of the Practice Direction have not been complied with. It is however worse than that. It appears effectively, they have been ignored. The importance of that is that this Tribunal would need to have the material upon which it could say properly that there was an arguable case. A failure to comply with the Practice Direction is not in itself a reason for declining to give permission to proceed further. But the substance of what that Practice Direction requires must be present if this Tribunal is to be in any position to decide that the Employment Tribunal below exercised its discretion upon a false basis. We do not have that material because the Practice Direction has not been observed. Therefore we would not have the material in any event to enable a further sitting of this Tribunal to determine whether there was a flaw in the way in which this Tribunal had gone about the exercise of its discretion.[17]For all those reasons we see no arguable ground of appeal and therefore this appeal stands dismissed.