SKINNERS HASTINGS LTD v MRS J V WILKIN [2001] UKEAT 1023_00_2102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1023_00_2102Case No Appeal No. EAT/1023/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SKINNERS HASTINGS LTDAPPELLANTMRS J V WILKINRESPONDENT
Before
Mr Justice LindsayDate 21 February 2001
[1]APPEARANCES For the Appellants THE APPELLANT NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : This is a preliminary hearing of an appeal by Skinners Hastings Ltd in the matter Mrs J V Wilkin v Skinners Hastings Ltd . No one appears before us today but we have had a written argument from the appellant and an indication that, in effect, we are invited to deal with it on paper only. The chronology is as follows: on 17th January 2000 the IT1 was presented by Mrs Wilkin. She had been dismissed on 7th January 2000. She was claiming unfair dismissal. On same day, 17th January 2000, a notice of the Originating Application in standard form was sent out to Skinners Hastings and it said, inter alia:
"Under the Rules of Procedure you are required to enter an appearance within 21 days of receiving the application. This may be done by completing and returning the enclosed IT3. A late Notice of Appearance may not be accepted and even if accepted may render you liable for costs – see Rule 3(3) and (4). If you do present a late Notice of Appearance you should set out the reasons why the Notice was not presented in time . You will not be entitled to defend the proceedings if you fail to enter an appearance, although you will be sent a copy of the notice of hearing and the Tribunal's decision."
Quite when the Originating Application was received by Skinners Hastings does not appear but we will have to assume that it was in the ordinary course of post from 17th January 2000.[2]On 2nd February 2000 (at any rate that is the date so far as one can judge from the date on the paper) Skinners wrote a letter to the Employment Tribunal and also completed a Notice of Appearance. But neither of those things were received in the ordinary course of post by the Employment Tribunal consistent with their having been posted on 2nd February 2000 and it transpires that they were not posted on 2nd February 2000, notwithstanding that they bear that date. They were, it seems, posted on 15th February 2000 to the Employment Tribunal. On 16th February 2000 the tribunal received the Notice of Appearance and the letter, in an envelope postmarked 15th February 2000.[3]On 23rd February 2000 the tribunal pointed out that no reasons had been given for an extension of time for the Notice of Appearance and indicated that an explanation needed to be given by 2nd March 2000.[4]That got a fairly prompt response from Skinners. They wrote on 29th February 2000; they said this:
"It appears that you did not receive our response to the notice of appearance in the above case within the 21 days allowed. I am unsure of why this was, as I had completed the forms by 2 February 00 and left these at our Hastings office to be forwarded to yourselves. As you will no doubt appreciate, I am continually travelling between our four branches and have just received the notice stating that our response was late. As we do not keep a daily record of individual letters posted for each day, I must assume there was a delay between the file being left a Hastings and it being posted to you; perhaps you will have a record of when you received it. I must therefore apologise for any delay and ask that you do admit our response, as there was no intention not to comply with your timescale. Clearly we would wish to be allowed to make our case on 15 March 00."
The 15th March 2000 was the date which apparently had been fixed for the hearing.[5]On 3rd March 2000 the Chairman wrote back saying this:
"Thank you for your letter of 20/02/00, the contents of which are noted. The Chairman does not consider your explanation for entering a late Notice of Appearance to be adequate and so the case will proceed on 15/03/00 on an 'appearance not entered' basis."
No reasons were given beyond that, either extended reasons or summary reasons, and no indication was given of any ability to appeal.[6]On 9th March 2000 Skinners wrote again. They said:
"Thank you for your [letter] of 3 March 00; naturally I am disappointed that The Chairman has rejected our explanation. I fail to see how justice can be achieved in this matter should we not be allowed to represent ourselves and answer any questions, which undoubtedly will arise during the hearing. We are a respectable Company who have been in business under the current ownership, for over thirty years. We are a respecter of the employment rights of all employees and of the Employment Tribunal's systems aims and achievements, however we fail to see the rationale behind this decision. … I therefore respectfully request that the Chairman reconsider his decision."
[7]On the same day, 9th March 2000, the Chairman answered:
"The file has again been referred to a Chairman, who directs I reply as follows. The Respondents advance no further explanation. Whilst he is aware of his powers under Rules 13 and 15, he does not validate the Notice of Appearance. The case remains listed as "
Appearance not entered by Respondent" at Brighton on Wednesday 15th March 2000 at 9.45am." Again, no reasons were given, extended or summary, beyond that and no indication of any ability to appeal.[8]On 15th March 2000 there was a hearing before the Chairman alone, Mr R E Barrowclough at Brighton. Mr Cavey, the director who had been communicating on behalf of Skinners, attended the tribunal hearing, and as we shall come on to in more detail, the Chairman records that no application was made for an extension of time to validate the Notice of Appearance.[9]On 5th July 2000 the decision was sent to the parties. It was:
"The Applicant was unfairly dismissed. The Respondents are ordered to pay the Applicant the sum of £3,428.50."
[10]On 8th August 2000 a Notice of Appeal was presented ostensibly against both decisions, that is to say the decision of the 3rd March 2000 not to extend time and the decision of the 15th March 2000 which was sent out on 5th July 2000 on the merits. There was an application for an extension of time as to the Notice of Appeal so far as it related to the decision of 3rd March 2000 but the Notice of Appeal was in time so far as concerned the decision sent out on 5th July 2000, which was the decision relative to the hearing of 15th March 2000.[11]On 10th October 2000 the Registrar here at the Employment Appeal Tribunal declined to give an extension of time as to the appeal against the decision of 3rd March 2000. On 20th October 2000 a letter was written on behalf of Skinners saying that the Registrar's order was not appealed but asking that the preliminary hearing should go ahead so far as concerned the decision of the 5th July 2000, which they wished to challenge.[12]So much for the chronology. It is a chronology that does seem somewhat harsh. It generates in us the feeling that we ought to strive carefully to see whether there has been an error of law here, in order that a party which had plainly indicated its wish to contest the case and in circumstances where its wish, it would seem, could have been honoured without jeopardising the hearing of 15th March 2000, should have the opportunity of doing so.[13]Well, what, if any, errors of law can be found? No member sat with the Chairman. He was sitting alone. But that is possible even in an unfair dismissal case where the respondent "does not or has ceased to contest the case" – see section 4(2)(g) of the Employment Tribunals Act 1996 . Could it be said that on 15th March 2000 that Skinners did not or had ceased to contest the case? Rule 3 of the Employment Tribunal Rules has to be borne in mind. A respondent who has not entered an appearance is not entitled to take any part of the proceedings, save in prescribed limited ways. It is consistent with the sense of the Rules that a Notice of Appearance which is out of time and has not thereafter been allowed and accepted as within an extended time, is to be taken as if no appearance at all. Accordingly, the respondent could be regarded as not contesting the case. It would seem that there is no arguable error of law in that area, although it could be that further research would put a different light on matters. But we do not see any arguable error of law ourselves in that area.[14]But we need to go back to the decision of the tribunal where at paragraph 4 the Chairman says this:
"Mr Cavey, the Managing Director of the Respondents, attended the hearing on the 15 March. The Tribunal explained in particular the provisions of Rule 3 and 11 of the Employment Tribunals (Constitution) Regulations 1993 to him. No application was made by or on behalf of the Respondents for any extension of time pursuant to Rule 15, and the hearing proceeded on an "appearance not entered basis"."
Now, we have got to remember what the Chairman had in front of him at the time. Firstly, he had Skinners' letter of 2nd February 2000, stating that the redundancy of Mrs Wilkin was regretted but that selection had been on the last-in-first-out basis; secondly, the Chairman had in front of him the out of time Notice of Appearance seeking to resist Mrs Wilkin's claim on that basis; thirdly, he had Skinners' letter of 29th February 2000 saying "clearly we would wish to be allowed to make our case on 15 March 00"; fourthly, he had Skinners' letter of 9th March saying that they failed to see how justice could be done if they were not permitted to represent themselves and to answer questions; and, fifthly, he had the managing director's personal appearance before him on 15th March 2000.[15]Now it is notable that against that background, the Chairman, sitting alone, firstly does not say that any application for an extension of time would, had it been made, have had to have been declined as the only grounds on which it could have been based were inadequate. He did not say that an extension of time, if granted, would have inescapably involved a prejudice to the applicant below, still less that it would have involved a prejudice not compensatable in costs. The extended reasons record no enquiry of the respondent below as to what grounds or further grounds it could advance for an extension of time and no expression of any conclusion that whatever grounds that could be advanced could only be inadequate. The only matter recorded in paragraph 4 in relation to Mr Cavey's standing before the Chairman on 15th March 2000 was that no application for an extension of time was made. There is no record in the extended reasons of an invitation to Mr Cavey as to whether he wished to make an application for an extension of time and this leads us to Rule 9(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 . It says:
"The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings … The tribunal shall make such enquiries of persons appearing before it … as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."
[16]Now, in the circumstances of the five features we mentioned, was it arguably perverse of the Chairman, sitting alone, not to consider it appropriate at least to ask Mr Cavey whether he wished to apply for an extension of time so as to validate the Notice of Appearance, a document which, by then, the tribunal had had in its hands from 16th February 2000, a month less one day? Was it arguably perverse for the Chairman not to raise that question as a question appropriate to the just handling of the proceedings?[17]We are only concerned, at this stage, with what is arguable and we say that that is arguable. That it is, in other words, arguable that no tribunal properly instructing itself could have proceeded to deal with the case on a "appearance not entered" basis, thereby barring the company from all parts of the proceedings, without, at least, enquiring whether application was made for an extension of time so as to validate the existing Notice of Appearance.[18]There is a further point and that is this: Mr Cavey has sworn an affidavit in the matter. He says:
"At that hearing the Chairman of the Employment Tribunal, a Mr R E Barraclough, informed me quite categorically that I could not take part in the proceedings. He said I was 'free to remain and observe but that as a decision had been made to refuse an extension of time for the validation of the Notice of Appearance he was bound by that decision and that I could take no part. … Although the extended reasons of the Tribunal relating to that hearing says that I made no application for any extension of time at the hearing on the 15th March, that is true but only because I was denied the opportunity to do so. …"
Now, to dispose of a party's presence on the sole footing that it had not applied for an extension of time might be thought to be particularly unjust and potentially indicative of error of law if the case was that the tribunal had begun by indicating to that party that it could take no part in the proceedings. One can hardly blame a man for taking no part in the proceedings if he has been told he can take no part in the proceedings. Moreover, it would have been inaccurate to tell Mr Cavey that he could take no part in the proceedings, because Employment Tribunal Rule 3(2)(a) does permit an application to be made for an extension of time. To that extent, a part, albeit very limited, could have been taken. The affidavit sworn by Mr Cavey confirms the Notice of Appearance, the one that has not been accepted, as true and it therefore purports to confirm the truth of the company's allegations that Mrs Wilkin was made redundant; that she was selected on a last-in-first-out basis and that there had been no other available position open for her. Of course, the affidavit, coming from only one side, is by no means conclusive, but, at any rate, that was what has been confirmed by Mr Cavey's affidavit. To that extent, Employment Appeal Tribunal Practice Direction 16(2)(ii) and 16(3) is, on the face of things, satisfied. But there is real doubt as to whether 16(2)(i) is satisfied. But where the Employment Tribunal could on 16th February 2000 or perhaps even as late as 9th March 2000 have probably admitted the Notice of Appearance without disturbing the hearing of 15th March 2000 and where any prejudice suffered by Mrs Wilkin, had that been done, could possibly or even probably have been dealt with by way of an order for costs against Skinners, it is debatable, by reference to case law, whether the absence of a good explanation for the delay can alone justify a refusal to allow a party to be heard at first instance – see Costellow [1993] 1 AER 952 at 959.[19]We allow the Notice of Appeal therefore to go forward to a full hearing, but only as against the decision of 15th March 2000. We put the case into Category B and mark it as likely to take two hours. We give leave to the appellant to amend the Notice of Appeal within 10 days of the sending out to it of the transcript of this judgment. We do not say that the Notice of Appeal has to be amended; that will be a matter for the appellant, but we give it leave to reconsider matters within that 10 day period and to amend if it so chooses.