LEGEND HAIR & BEAUTY v MISS J. A. MUTCHELL [2001] UKEAT 0744_00_2702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0744_00_2702Case No Appeal No. PA/0744/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LEGEND HAIR & BEAUTYAPPELLANTMISS J. A. MUTCHELLRESPONDENT
Before
Mr Justice LindsayDate 27 February 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MR K WELLS Representative THE HONOURABLE JUSTICE LINDSAY (PRESIDENT) : I have before me the appeal of the erstwhile employer, Legend Hair & Beauty, in the matter Miss J. A. Mutchell v Legend Hair & Beauty. It is an appeal against the Registrar's refusal to extend time to Legend Hair & Beauty for its Notice of Appeal. No one attends today on behalf Legend Hair & Beauty. Mr K Wells attends as a representative of Miss Mutchell. At the last minute today there has been received a fax from Mr Sean McMurray, apparently of the company Legend Hair & Beauty, giving a phone number, giving today's date and saying:
" Please accept my apologies for not attending the hearing this morning. I am ill at the moment with food poisoning. Please adjourn the hearing to a later date so that I can attend ."
Well, is that a good enough reason for an adjournment? Mr Wells tells me, having done a little detective work himself this morning, that he noticed that Mr Sean McMurray was at work. I put that out of mind because it might be that Mr McMurray got the food poisoning afterwards or that there is some other explanation. But it has to be borne in mind that Legend Hair & Beauty is a firm and that some prior communication from the firm has been received from a Mr Drury. For the firm to be excused representation or attendance simply because Mr McMurray is not well does not seem to me an adequate explanation for not going ahead. And so I propose to go ahead with the case and, indeed, it would really be unfair to Miss Mutchell to have the matter adjourned, possibly without any hope of recompense for the costs thrown away in attending today. I have no reason to know whether Legend Hair & Beauty could sustain an order for costs. So, as I say, I will go ahead in their absence.[2]The chronology is this that on the 18 April 2000 there was a hearing at the Employment Tribunal of Miss Mutchell's application. The employer did not appear nor was it then represented. It had not even put in a notice of appearance. The nature of Miss Mutchell's complaint was that she had been dismissed by the Respondents below, the employer, on the 6 February 1999 after she had made it know that she was pregnant and that that was unfair. The Respondent, said the Tribunal, did not enter an appearance and had made no representation in writing or at the hearing, which took place before the Employment Tribunal at Birmingham under the Chairmanship of Mr Derek Mellor.[3]The decision below was unanimous and it was that the dismissal of the Applicant by the Respondents below (and there were three Respondents named, first, Legend Hair & Beauty; secondly Gordon Drury trading as Legend Hair & Beauty, thirdly Fox Craft Limited trading as Legend Hair & Beauty who jointly and/or severally constituted the Applicant's employer) was unfair under Section 99 of the Employment Rights Act 1996 in that the principal reason for the dismissal was that the applicant was pregnant and (b) in respect of that dismissal and of the Respondents' breaches of contractual rights, the Respondents jointly and severally were ordered to pay to the Applicant compensation in the sum of £3,423.50, of which details were set out. That was sent to the parties on 28 April.[4]On the 14 May, the date was put to a Notice of Appeal from "Legend Hair & Beauty" which was received by the EAT on 12 June. The Notice of Appeal in paragraph 6, which is on the printed form, says:
" The grounds upon which this appeal is brought are that the Employment Tribunal erred in law in that :- The Appellant did not attend the Tribunal. The fault was an administrative mistake with regard to the date of the Tribunal. The Appellant vigorously denies the claims of Miss Mutchell and has prepared witnesses and statements to show the untruths that have been made in this case. The findings of the Tribunal were incorrect as the Tribunal only heard one side of the case and Legend Hair & Beauty are confident that once their side has been heard the case will be dismissed ."
[5]On the 19 June the EAT informed the employer that its Notice of Appeal was late and asked whether it was seeking an extension of time. On the 13 July the EAT reminded the employer that it still had heard nothing in response to that invitation. On the 27 July the employer wrote to the EAT saying; " Further to your letter of the 19 June 2000 and subject to paragraph 3 we apologise that we were not represented at the hearing. This was due to a filing error during a re-organisation of the management offices. The date was listed as July instead of June. We had prepared to attend the following month and had booked witnesses and a senior management member to attend to defend our case. The relative papers arrived just prior to this date otherwise we would have attended at the July date. Our witnesses are prepared to attend on another date, which we wait to be informed of. We therefore respectfully request an extension in time for our appeal to be considered ." The Employment Appeal Tribunal on the 14 August, as it does in these cases, asked the employee, Miss Mutchell, what were her views on the question of whether an extension should be granted and on 24 August, Miss Mutchell opposed any such extension. She wrote to say:
" I strongly object to the appeal for the following reasons. Firstly, the Tribunal date was in April and not in June, as stated by Legend Hair and Beauty. This totally falsifies their reason why they did not attend. Secondly from the first hearing on January the 4 th 2000, until the Tribunal decision in April, no correspondence whatsoever came from Legend Hair & Beauty. They did not appear at the first or second hearing. I feel this has been carrying on too long, and Legend Hair and Beauty have had total disregard for this hearing, until the award was given to me. I do not want to have to go through the stress of another hearing ."
On the 4 September the Employment Appeal Tribunal sent that letter to the erstwhile employer and said:
" Please let me have any final submissions you may wish to make within 14 days of the date of this letter ."
[6]On the 27 September, still the position was that the EAT had heard nothing and so they wrote again inviting a response within 7 days. Even so nothing was heard and on the 12 October, the Registrar made an Order. It recites the receipt of the Appellant's (that is to say Legend Hair & Beauty's letter) of the 27 July. It refers to the letters of 4 September and the 27 September, and the letter of 24 August. It considers the practice direction and it refers to the case of United Arab Emirates v Abdelghafar , which is the case that gives the guidelines in this area, and it concludes on that basis that it is considered 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 ordered that an application for an extension of time in which to present the Notice of Appeal was refused.[7]Five days is allowed for appeals against such orders - see EAT Rule 20 Sub Rule (2). It was not until the 1 November that Mr Drury, on behalf of the employer, telephoned the EAT. On the 28 November the EAT recorded that telephone conversation with Mr Gordon Drury by way of note to the employer. The Employment Appeal Tribunal on that day 28 November wrote to Legend Hair & Beauty:- "I refer to the above matter and my telephone conversation with Mr Gordon Drury on 1 November 2000. Mr Drury stated that he wished to appeal out of time from the Registrar's Order dated 12 October 2000; he also stated he would write to confirm this. We have as yet received no such written communication. I have referred this matter to the Registrar who has directed me to inform you that although your telephone call of 1 November 2000 was out of time the appeal from the Registrar's Order will be set down for a hearing providing written confirmation is received within 7 days of the date of this letter. Without such written confirmation the appeal cannot be set down for hearing."[8]On the 30 November, a brief letter was sent by Legend Hair & Beauty to the EAT saying:
"With reference to the above and our telephone conversation on the matter, we would confirm that we will appeal and therefore request that a date be set down for a hearing."
And that is signed by Mr S McMurray, Director. On the 20 February Miss Mutchell's solicitors, Messrs Blakemores, sent a skeleton argument but nothing was received from the Appellant, Legend Hair & Beauty, save for the fax that I referred to earlier. There is no need to attempt to improve upon the skeleton argument of Miss Mutchell's solicitors. They set out the history of the matter namely that the Appellant, Legend Hair & Beauty, did not serve an appearance to the original IT1, they did not attend at Birmingham on the 18 April; that their Notice of Appeal was out of time; that although they were advised by the EAT to apply for an extension of time, they did not respond until the 27 July. They mention that the Appellants were sent a letter by the EAT on the 4 September extending time but that no response was received. And they mention the delay in appeal against the Registrar's Order. They say that Miss Mutchell argues that the Appellants have shown a complete disregard of the proceedings by not filing an appearance, by not attending the original hearing on 18 April and either replying late or not at all to letters sent to them by the EAT. And they say it would not be equitable for the Appellants to re-open the case after such a lapse of time.[9]I agree. The Abdelghafar case to which reference has already been made shows that it is incumbent on an Appellant in this area, seeking to have time extended in his favour, first to set out a full and candid explanation why there has been delay and that full explanation needs to amount to some good reason for the exceptional and indulgent course of allowing an extension of time. There is no explanation whatsoever, save for the inadequate one as to the non-attendance at the hearing of why the matter was thereafter delayed as it has been. It is not explained at all. Moreover the Court of Appeal in the more recent case of Aziz v Bethnal Green dealt with an argument where it was said that the EAT was stricter in regard to time then was the Court of Appeal with applications direct to the Court of Appeal. But that stricter line was not disapproved; indeed it was, so to speak, blessed by the Court of Appeal. The EAT is entitled to take a strict line with regard to delay in relation to the lodging of Notices of Appeal.[10]No good reason for the indulgent and exceptional cause of extending time having been shown, I must dismiss the appeal. Accordingly, the Notice of Appeal submitted remains invalid.