MISS J HALL v ROUTE 73 KIDS [2001] UKEAT 0483_01_2211

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0483_01_2211

Case No Appeal No. EAT/0483/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS J HALLAPPELLANT

ROUTE 73 KIDSRESPONDENT

Before

Mr Justice Lindsay

Date 22 November 2001

[1]APPEARANCES For the Appellant MR GORDON MENZIES (Of Counsel) Instructed by: Messrs Pollecoff Solicitors 41 Tabernacle Street London E8 2NL MR JUSTICE LINDSAY (PRESIDENT) We have before us as a Preliminary Hearing the appeal of Miss J Hall in the matter J Hall v Route 73 Kids . It is an appeal against a decision at London Central. Today Mr Menzies has appeared for Miss Hall.

[2]The chronology is this that on 7 July an IT1 was received at the Employment Tribunal from Miss Hall claiming unfair dismissal, breach of working time regulations and unlawful deduction from wages. She said she had been employed from 14 January 1999 until 7 April 2000. She had solicitors acting for her or at any rate identified a firm of solicitors as her representative in her IT1.

[3]On 4 August an IT3 was received from her employer. It asserted that she had been dismissed for breach of contract but the IT3 took the point that the IT1 had been 1 day out of time. The 7 April 2000 was the date of dismissal so the very last moment of the 6 July represented the expiry of 3 months from the last time during which Miss Hall was employed. But the IT1 had not been presented until 7 July. That was what the IT3 asserted.

[4]On 20 February 2001 there was a hearing at London Central. Miss Hall was in person. Her solicitors did not attend. On 2 March the decision of the Employment Tribunal which was as I mentioned, at London Central and was under the chairmanship of Mr G P Sigsworth, was promulgated. The decision was unanimous and was that the Originating Application was dismissed. It was only summary reasons that were given. The Tribunal said:

"The law is clear. The Tribunal have to consider whether it was reasonably feasible for the Applicant to have presented her claim within time."

And then, after setting out some authorities:

"Therefore, the Tribunal has concluded that, so far as the claim for unfair dismissal is concerned, time began to run on 7 April, and the claim should have been presented on 6 July 2000. The claim was not presented until 7 July, and the Applicant has not satisfied the Tribunal that it was not reasonably practicable for her or her solicitor to have presented the claim within time."

[5]As to holiday pay they said:

"Therefore, the Tribunal concludes that the right to payment of holiday pay arose, again, on the termination of the Applicant's employment, namely 7 April 2000, and therefore her claim in this respect is also out of time."

[6]On 14 March Miss Hall sought a review by the Employment Tribunal of that decision. On 23 March the Employment Tribunal refused to review and on 12 April a Notice of Appeal against the decision of the 2 March was received at the Employment Appeal Tribunal.

[7]The Employment Tribunal, at the hearing on 20 February, was, it seems, told by Miss Hall that her solicitors had said to her that they had faxed the IT1 to the Employment Tribunal on 5 July. She seems also to have said to the Tribunal that she had learned that the solicitor's fax machine had reported by way of information report that transmission on 5 th July had gone through "OK". The Tribunal mentioned this or something on the subject in their paragraph 3 where they say:

"The Applicant's solicitor alleges that she faxed the IT1 to the Tribunal on 5 July. (Just pausing there, it is not suggested that the solicitor was present at the hearing so it would seem it could only have been reported from Miss Hall) However, there is no indication that such fax was received by the Tribunal, although the daily activity sheet has been scrutinised without any positive result."

[8]The Tribunal does not mention any evidence properly-so-called as having been given by the solicitors as to the solicitor having faxed on 5 July and having had the transmission confirmed by way of an information report. They said in their paragraph 4:

"The Applicant gave evidence on oath, but her solicitor did not attend and was not able to explain the position so far as she was concerned."

But presumably what we have read represents what Miss Hall said, namely what her solicitors had told her was the case; there is no indication in the summary reasons that the Tribunal actually saw the solicitor's machine's information report.

[9]However, in the application for a review, which looks as if it was drafted by Miss Hall's solicitors, this was said:

"The Applicant's solicitors, when the IT1 was faxed on 5 th July 2000, received a communication report from their fax machine which stated at the top (ok) and confirmed that all 5 pages of the fax to the Employment Tribunals fax number had been sent on 5 th July 2000 at 15.58. A copy of this faxed confirmation report was sent to the Employment Tribunals on 9 th August 2000, together with a covering letter of the same date indicating that there was concern that the Respondent's IT3 alleged that the IT1 was not received by the Tribunal until 7 th July 2000. A copy of the letter, together with a further copy of the fax confirmation report is annexed hereto. A copy of the faxed confirmation report was also sent to the Respondent's solicitors on 22 nd August 2000. It would appear that the Tribunal have either failed to take the fax confirmation report into account in reaching their decision or have added little weight to it as no reference is made to it in their decision."

[10]In the response to the request for a review the Chairman said, at paragraph 3 of his extended reasons for the refusal of a review:

"The Applicant's essential case under ground (e) is that the Tribunal should have given more weight to her solicitor's fax OK confirmation report, which apparently indicated that the fax had been sent correctly. However, the Tribunal's decision was that the Applicant's solicitor should have used a better system of checking – not simply to rely on its own fax machine, which may have been faulty or inaccurate, but actually to check whether the fax was received at the Tribunal. There was nothing to stop such a check being made, and, if it had been made, the Applicant's solicitor would have realised that the fax had not in fact been received."

[11]Had the Employment Tribunal said that they had received no evidence or no adequate or credible evidence as to Mrs Hall's solicitors having faxed on 5 July but that they were adamant that the Tribunal had had before them evidence that nothing was received by the Tribunal on that day or by the expiry of 6 July then doubtless their decision would have been impregnable but that is not what they said. The Tribunal at the review stage said that the fax confirmation report "Apparently indicated that the fax had been sent correctly". That suggests that the Employment Tribunal at the main hearing had cast no doubt on the credibility of that, either in the sense of the solicitor's machine not being properly working or in relation to the alleged information report not being genuine. The Tribunal were content, it seems, rather to rely on the Employment Tribunal's own machine. There is no mention of evidence being given to the Employment Tribunal as to the reliability or unreliability of the Employment Tribunal's own machine. Why should one machine, in the absence of evidence, be taken as more or less reliable than the other? And what was the evidence (if any) that the Employment Tribunal relied upon as to the Employment Tribunal's own machine? Was evidence formally given on the point and, if it was not, how could Miss Hall challenge it? Was she given the opportunity to challenge the Employment Tribunal's machine's daily activity sheet? Questions as to evidence thus arise but, of more general application, the Tribunal said this referring to Capital Foods Retail Ltd –v- Corrigan

[1993] IRLR 430

EAT and Camden & Islington Community Services NHS Trust –v- Kennedy [IRLR] 381, EAT as follows:

"The test laid down in Corrigan is a stringent one, it is said for a solicitor to act reasonably and without fault, there must be a system in place which enables the solicitor to find out, contemporaneously, whether the conduct of business is taking a normal course and to check, at or near the time, that replies that should have been received at a given date have in fact been received. A system must be in place, designed to ensure that time limits are strictly complied with."

But Corrigan was a case where a solicitor sent an IT1 by post on the 25 March of a year and made no further enquiries as to its receipt until the 27 July of the same year and the Camden case simply followed Corrigan . It was another postal case. No fax case is drawn to our attention, nor was to the Employment Tribunal. We think it arguable - and of course at this stage that is all we are concerned about - that the Employment Tribunal erred in law in concluding that no adequate checking system was in place, given that the solicitor's fax machine had a reporting mechanism that was not proved to be defective and that the reporting mechanism apparently indicated "ok" and that the credibility of that was not looked into. The case, as the first case involving fax machines, is in our view, proper to go to a full hearing on all points raised in the Notice of Appeal.

[12]It is to be noted that the Employment Tribunal gave summary reasons only for the decision that is under appeal. This has not been picked up by the Employment Appeal Tribunal. What is normally done when that is noticed is that the would-be Appellant is told to go back to the Employment Tribunal and seek extended reasons but this particular case has now come so far that to do that now would seem to be somewhat pedantic. What we do is to rule provisionally under the discretion given to us by the Employment Appeal Tribunal Practice Direction that the matter is to go forward on the basis that the summary reasons are sufficient to stand as extended reasons for the purposes of the appeal.

[13]However, if in good time before the full hearing, the Respondent wishes to argue that the summary reasons are inadequate or unfair as a base for an appeal they may do so, in the first place in writing to the President. Subject to that observation we direct the matter to go to a full hearing. Skeleton arguments to be exchanged and sent to the Employment Appeal Tribunal also not less than 14 days before the date fixed for the hearing. If either side wishing to take the matter further thinks it is necessary to seek Chairman's notes that can be done (in the first place in writing again to the President).