ASSOCIACTION PUBLICATIONS LTD v (1) MRS J COOPER (2) ROBERT JAY ASSOCIATES LTD [2001] UKEAT 1227_00_2002

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1227_00_2002Case No Appeal No. PA/1227/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ASSOCIACTION PUBLICATIONS LTDAPPELLANT(1) MRS J COOPER (2) ROBERT JAY ASSOCIATES LTDRESPONDENT
Before
Mr Justice LindsayDate 20 February 2001
[1]APPEARANCES For the Appellants THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the First Respondent For the Second Respondent MR S RAHMAN (of Counsel) Messrs Taylor Walton Solicitors 34-44 Alma Street Luton Bedfordshire LU1 2PL THE SECOND RESPONDENT NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : I have before me the appeal of Associaction Publications Ltd in the matter of Mrs J Cooper v Associaction Publications Ltd . The company's name keeps on being spelt in various ways. It begins like the word "association" with "associ" and then has a hyphen and the word "action" so that it emerges as the word "Associaction Publications". This is the appeal of Associaction against the Registrar's order declining to extend time for the Notice of Appeal. Today, no one appears for the appellant company and, indeed, it transpires that a director of the company, Mr Robert John Kemp, has, as a director, applied for the company to be struck off the Register. He did that, as it would seem, only recently, on 12th December 2000. On 6th February 2001 the Registrar of Companies gave notice that unless cause is shown to the contrary, at the expiration of three months from 6th February 2001, Associaction Publications Limited will be struck off the Register and the company will be dissolved. So it is in that sort of limbo state for the time-being and, indeed, as I shall mention, there has been a communication to somewhat similar effect received by the Employment Appeal Tribunal. So no one attends for that dormant company which is under peril of ceasing to exist. Mrs Cooper, however, is represented by Mr Rahman before me today. The chronology is this: that on 24th January 2000 an IT1 for constructive dismissal, unlawful deduction of salary and breach of contract was launched by Mrs Cooper against two respondents, firstly, Robert Jay Associates Ltd and secondly, Associaction Publications Ltd.[2]Mrs Cooper claimed that she had resigned on 25th October 1999 because she was unpaid and that she had therefore effectively been constructively dismissed.[3]On 18th February 2000 an IT3 was lodged only by Associaction. The Robert Jay company, it was said, had ceased to trade and had been wound up. Associaction claimed that Mrs Cooper had resigned rather than had been dismissed and that, in general terms, she had been paid.[4]On 4th May 2000 there was a hearing at the Employment Tribunal at Stratford. No one appeared for Robert Jay Associates Ltd, but the managing director, Mr Kemp, appeared for Associaction.[5]On 2nd June 2000 the decision was sent to the parties. It was unanimous, under the chairmanship of MR B C Buckley, and the decision was: "(i) The Applicant's complaint of wrongful deduction of wages for the month of September 1999 and until 25 October 1999 is well-founded. (ii) The Applicant was unfairly constructively dismissed by the Second Respondents on 25th October 1999. (iii) In breach of contract the Applicant was not given notice of termination of her contract of employment nor paid monies in lieu thereof. (iv) By way of remedy in respect of the above matters, the Tribunal makes the following awards:- …" then there are rewards in respect of wrongful deduction of wages, unfair dismissal compensation and damages for breach of contract. Each is given a separate figure coming in all to some £5,635 odd.[6]That decision, as I mentioned, was sent to the parties on 2nd June 2000 and therefore the 42 days period prescribed for the lodging of a Notice of Appeal at the EAT expired on 14th July 2000.[7]On 26th July 2000 a review of the 2nd June 2000 decision was refused by the Employment Tribunal. On 2nd August Associaction protested the refusal to review. On 6th September, 42 days expired from the decision on 26th July to refuse a review.[8]7th September 2000 appears as the date on the Notice of Appeal, which I shall later come onto. It appears to be dated 7th September but it was not received then or thereabouts; it was not received until 21st September, which is 15 days out of time. It is a simple home-made form of Notice of Appeal.[9]On 29th September the EAT received a letter from Mr Kemp, the director of Associ-action; it says:
"In response please note that the Notice of Appeal was indeed completed on the 9th September but due to our current office re-location, it may not have been posted until a few days later. Also I have recently needed to take leave of absence to support my Wife who is still suffering from the consequences of the death of our Daughter last year."
It is slightly odd that the reference there is to the Notice of Appeal being completed on 9th September, because it is dated "07-09-2000". One might have thought that it was perhaps giving the month first and therefore referred to the 9th July, but that, of course, is not the case and so how Mr Kemp says it was completed on 9th when it appears to be dated 7th is not clear.[10]On 16th October Mrs Cooper's solicitors resisted any extension being granted and gave reasons for their opposition.[11]On 25th October Mr Kemp, writing for Associaction, put in his final comments and amongst the points made was this:
"As previously explained, I had no way of knowing precisely when the form was posted to you because at the time I was completely pre-occupied with supporting my Wife who was unwell at the time when we were also moving an office. You can imagine, it was an extremely difficult period."
[12]On 1st December the learned Registrar made an order which said, amongst other things:
"AND UPON due consideration of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS IT IS CONSIDERED that there has been shown no exceptional or acceptable reason why the appeal could not have been presented within the time limit laid down AND IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused"
[13]On 7th December 2000 there was a telephone indication to the Employment Appeal Tribunal by Associaction of its wish to appeal the Registrar's order.[14]On 1st February 2001 the letter of the Employment Appeal Tribunal to Mr Kemp at Associaction was returned and written on it is this:
"Sirs, Please note that Associaction Publications has ceased trading" then there is an illegible name followed by the words "
Accountants". So it seems to be signed by accountants but not in such a way that one can identify which accountants.[15]On 15th February 2001 a skeleton was received from Mr Rahman on behalf of Mrs Cooper.[16]The reference by the Registrar to the Abdelghafar case is a reference to the case which gives guidance in this area. One can expect from an appellant seeking an extension of time to explain his delays, to give a full and honest explanation of why the Notice of Appeal was late in the circumstances, then the tribunal is to examine whether that explanation provides a good ground for the exceptional, indeed, indulgent course of granting an extension of time.[17]Here one asks why there was no Notice of Appeal before the 21st September 2000, in terms of its receipt by the Employment Appeal Tribunal. The decision to decline a review was dated 26th July 2000. Why, if a Notice of Appeal truly was completed by 7th September, was it not posted promptly? One is naturally sympathetic to Mr Kemp's need to support his wife after a family tragedy; I can plainly recognise, too, the disruptions of moving office, but if Mr Kemp was able to organise a move of the office, one would surely expect him also to be able to cope with the relatively simple task of drawing up and lodging a Notice of Appeal. His Notice of Appeal was done by him or on his behalf. It would seem to be a home-made form and there is no explanation of why it could not have been prepared earlier and sent earlier.[18]The more recent case of Aziz v Bethnal Green in the Court of Appeal shows that although in some respects the Employment Appeal Tribunal takes a sterner line with extensions of time than does the Court of Appeal with the Court of Appeal's own cases, that stricter line was in no way disapproved. Here, no one has attended today on behalf of Associaction and I am given no good reason why delay should have been allowed to have been incurred in the way that it was and no good ground for granting an extension of time. I have not needed to call upon Mr Rahman. I am sure if I had he would have reinforced the points that I have made and no doubt added to them, but it has not proved necessary. Simply looking at the papers in the absence of any further address from Associaction, it seems to me that no case is made out for an extension of time. I therefore dismiss the appeal from the Registrar's order and Registrar's order stands.