MRS H COELHO v BIOREX LABORATORIES LTD [2001] UKEAT 1041_00_3011

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1041_00_3011Case No Appeal No. EAT/1041/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS H COELHOAPPELLANTBIOREX LABORATORIES LTDRESPONDENT
Before
His Honour Judge D M LevyDate 30 November 2001
[1]APPEARANCES For the Appellant MR AYOADE ELESINNLA Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ For the Respondent MISS NAOMI ELLENBOGEN (of Counsel) Instructed by: Messrs Bristows Solicitors 3 Lincolns Inn Fields London WC2A 3BP JUDGE D M LEVY QC The first point raised in this appeal is whether the Notice of Appeal, as amended, following the Order of this Tribunal on 5 December 2000, contains a point for which leave was not given in the EAT Order of that date, and which should now be allowed to go ahead.[2]The ground in the application to amend her Notice of Appeal (dated 10 July 2001 and received by the EAT on 16 July 2001) reads:
"The Appellant seeks leave to amend her Notice of Appeal dated 16 August 2000, to include the following ground: (1) The Employment Tribunal erred in law in finding as they did, at paragraph 16 of the Extended Reasons Decision that: "……the business of the Respondent was contracting and that there was insufficient work for both Ms Butler Mrs Coelho to do. There was, therefore, a redundancy situation."
This was an impermissible focus by the Tribunal on the amount of work the employer had." Reference is made to a passage in the decision in Safeway Stores -v- Burrell [1997] ICR 523 .[3]The solicitors for the Respondent objected to that ground of appeal by letter dated 6 August 2001, which it was directed should be dealt with at this hearing. Counsel for the Appellant has put in his Notice of Appeal the ways in which this new point arose which, as the letter points out, is a new point, eleven months out of time, just over seven months subsequent to the preliminary hearing, without explanation as to its timing or of the reasons why it could not have been made timeously, or at the very least, at the preliminary hearing and on well known authority which had been decided three years prior to the date of the hearing before the Tribunal.[4]Further, it is suggested in that letter that, in submissions backed by Counsel this morning, that there was no merit in the ground having regard to the findings of the Tribunal and what had been said at the preliminary hearing. We are satisfied that the points made by the solicitor and by Counsel for the Respondent are right. This is a point which should have been taken earlier; it is, in any event, a point which seems to us to be without merit. There was no appeal from the Decision of the preliminary ex parte hearing of the Appellant's appeal of a panel which I headed, giving judgment on 5 December 2000. We therefore will not allow the appeal to proceed on this point.[5]We will deal, as far as is necessary, with the question of the small amount of costs which this point has raised in due course.