MR P ODUNLAMI v ARCADE CAR PARKS [2001] UKEAT 0188_01_1511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0188_01_1511Case No Appeal No. PA/0188/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P ODUNLAMIAPPELLANTARCADE CAR PARKSRESPONDENT
Before
Mr Justice LindsayDate 15 November 2001
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR JUSTICE LINDSAY (PRESIDENT) I have before me an appeal by Mr P Odunlami in the matter Odunlami v Arcade Car Parks . Mr Odunlami is here in person but no-one appears for Arcade Car Parks. Correspondence with the solicitors who formerly acted for Arcade Car Parks suggests that it might be that Arcade Car Parks, if ever it was a legal entity, is no longer a legal entity and, moreover, that it has ceased to trade.[2]The background to the matter is this that on 26 September Mr Odunlami lodged an IT1 for unfair dismissal and for wrongful dismissal and on the face of the IT1 he claimed to have been employed from 2 August 1994 to 26 May 2000. The IT1 was therefore on the face of things outside the three months time limit although that would depend on precisely when it was that he ceased to be employed.[3]On 20 November there was a hearing at the Employment Tribunal. The Respondent company had not appeared and was not represented as the matter went ahead. On 6 December 2000 the decision of the Tribunal, which was the Tribunal at London Central sitting under the chairmanship of Mr C A Carstairs, was sent to the parties. It was the unanimous decision of the Tribunal and was that it did not have jurisdiction to consider Mr Odunlami's complaint of unfair dismissal and breach of contract, which claims were therefore dismissed.[4]The Employment Tribunal held that Mr Odunlami's employment had ended with dismissal not on 26 May, as his IT1 had said, but on the later date of 9 June 2000. But, even so, given the three months limit, the IT1 should have been lodged by the close of 8 September 2000 whereas it had not been so lodged by then. The Tribunal held that it had been reasonably practicable for Mr Odunlami to present an appeal in time and that there could be, therefore, no extension of time and thus that the matter was outside the jurisdiction of the Employment Tribunal.[5]That, as I say, was sent to the parties on 6 December 2000. On 3 January 2001 Mr Odunlami wrote to the Employment Appeal Tribunal a letter that I shall return to in a little more detail later but the letter began by saying:
"I hereby write to lodge my dissatisfaction and appeal to the decision taken by the Employment Tribunal on 20-11-2000 over my case No 2205470/2000 which was brought to the Employment Tribunal for hearing by my representative over the issue of my unfair and wrongful dismissal by the Management of Arcade Car Parks."
And the letter ended:
"I hope that my appeal will be carefully looked into to make my case be heard by the Employment Tribunal."
I think that must have meant to be "by the Employment Appeal Tribunal" and the letter was addressed to "The Chairman, Employment Appeals Tribunal"[6]On 17 January 2001 there expired the 42 day period from 6 December when the decision had been sent to the parties. On 23 January 2001 the Employment Appeal Tribunal wrote to Mr Odunlami saying:
"Thank you for your letter."
I think that it can only be the letter of 3 January that was thus referred to; there is certainly no suggestion that it is anything else. The letter from the Employment Tribunal is incomplete in the sense that it has a heading where plainly it is intended that it should say the name of one party against the other. There is a v in the middle but we have, in fact all we have, is the v in the middle. The letter said:
"Thank you for your letter. I now enclose for your information a guidance leaflet and Practice Direction and in particular draw your attention to the requirements referred to in sections 2 & 3. Appeals to this Tribunal from decisions of employment tribunals must raise a question of law and must reach this Tribunal within the 42 day time limit prescribed. I also enclose 2 copies of EAT Form 1, one of which should be completed and returned to this office together with a clear and unmarked copy of the Employment Tribunal's decision – Extended Reasons – from which you wish to appeal. You may, if necessary, continue your Notice of Appeal on separate sheets of paper."
The letter was not very helpful or clear because by 23 January the 42 day period had already expired.[7]On 2 February 2001 a Notice of Appeal (in the more conventional form which contains a printed form for a Notice of Appeal) was received here at the Employment Appeal Tribunal. On 9 February the Employment Appeal Tribunal pointed out that that Notice of Appeal of 2 February was 16 days late and invited Mr Odunlami to consider whether he applied for an extension of time.[8]On 17 February Mr Odunlami wrote to the Employment Appeal Tribunal saying inter alia:
"I had written a letter to you dated 03.01.2001 the last paragraph of which I specifically requested you to look into my case. In my opinion, my appeal was filed well on time on 03.01.2001 the date of my above letter."
[9]On 11 June 2001 the learned Registrar made an Order that concluded by saying:
"AND IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused"
[10]On 26 June Mr Odunlami wrote a letter which has been treated as a Notice of Appeal against the Registrar's decision. In the meantime the Employment Appeal Tribunal had sought to find out if the Respondent Arcade Car Parks wish to oppose any extension of time and there was correspondence with solicitors but nothing was heard of any substance.[11]So much for the background. A Notice of Appeal is required to be in or substantially in accordance with Form 1 or 2 of the Schedule to the Employment Appeal Tribunal Rules – see Employment Appeal Tribunal Rule 3(1)(a). The Form requires that a number of things should be supplied; the Appellant's name and address, the address for communication with the Appellant, identification of what it is that is being appealed from, identification of the other parties who had been before the Tribunal in the case appealed from, a copy of the Employment Tribunal's decision and Extended Reasons, an indication of the grounds of the appeal, the date and the Appellant's signature.[12]Looking at the letter of 3 January 2001 which Mr Odunlami indicated he argues ought to be treated as a Notice of Appeal, one sees that the Appellant's name and address is given in full. Equally the address for communication with him is given. The nature of the decision appealed from is accurately given. The particular number of the Employment Tribunal decision is given. Arcade Car Parks are identified as the other party who had been before the Employment Tribunal.[13]There is no copy of the Employment Tribunal's decision and Extended reasons. They were not given at that stage. The grounds of the appeal sufficiently appear in Mr Odunlami's letter. He says it was wrong to regard him as dismissed on 9 June. The date of the letter is, of course, given as 3 January 2001. It was given as part of a letter heading and it would seem that it was signed by Mr Odunlami.[14]So of the various requirements stipulated in the Employment Appeal Tribunal Rules to be given all that was missing was a copy of the Extended Reasons and of the decision of the Employment Tribunal itself. If only the Employment Appeal Tribunal had asked for those extended reasons promptly after receiving the letter of 3 January instead of writing as they did on 23 January (and even then not asking for the extended reasons) well then, it might well have been the case that Mr Odunlami would have supplied the extended reasons within the 42 day period.[15]In the circumstances the letter of 3 January should in my view be treated as a Notice of Appeal. I do not feel able to say that it was not substantially in accordance with the Form mentioned in the Employment Appeal Tribunal Rules. On that basis the Notice of Appeal of 2 February was not out of time but was, in a sense, redundant as something that need not have been supplied at all, given that there had been something that could be treated as a Notice of Appeal lodged earlier.[16]Accordingly I allow the appeal against the Registrar's refusal; I set aside the decision of 11 June and the matter is to proceed as if there was a timely Notice of Appeal on 4 January 2001 amended by the second Form received on 2 February 2001.[17]However. I give some breathing space to Mr Odunlami. If, after reflecting on the matter, he wishes to amend the Notice of Appeal of 2 February which I am already treating as an amended Notice of Appeal, if he wishes therefore further to amend to specify better and as succinctly as he can the errors of law which he asserts to exist, then he has leave to do so within 14 days. If no amendment is served on the Employment Appeal Tribunal within 14 days from today then Mr Odunlami's Preliminary Hearing will be limited to the grounds of law which he has expressed in his Notice of Appeal or amended Notice of Appeal of 2 February.[18]It might be wise for Mr Odunlami to reflect on whether the game is going to be worth the candle, whether it is worth pursuing Arcade Car Parks if their solicitors write in saying that they no longer exist as a legal entity and have ceased trading. I would not want him to incur anxiety and costs in pursuing a case that would necessarily lead nowhere. But that is entirely a matter for him to reflect upon; if he wishes to go ahead then I have indicated the manner in which he can go ahead.