LADIES OWN (UK) LTD T/A LADIES OWN SLIMMING & FITNESS CLUBS v MRS S HOMEWOOD [2001] UKEAT 1298_00_0405

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1298_00_0405Case No Appeal No. EAT/1298/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LADIES OWN (UK) LTD T/A LADIES OWN SLIMMING & FITNESS CLUBSAPPELLANTMRS S HOMEWOODRESPONDENT
Before
Mrs Recorder CoxDate 4 May 2001
[1]APPEARANCES For the Appellant MR TIMOTHY BECKER (of Counsel) Instructed by: Messrs Sloan & Co Solicitors 211 Piccadilly London W1J 9HF MRS RECORDER COX QC This appeal comes before us today by way of a preliminary hearing. It is an appeal from the Decision of an Employment Tribunal at London South which was promulgated on 25 September 2000.[2]The Employment Tribunal held unanimously that the Applicant, Mrs Homewood, had been unfairly dismissed by the Respondent, Ladies Own (UK) Ltd, now the Appellant before us, who was ordered to pay her a sum of £5347.31 as compensation.[3]This was a case of constructive unfair dismissal, the Respondent to this appeal having resigned from her employment by a letter dated 14 April 2000. She alleged that she was entitled to terminate her contract of employment by reason of her employer's breaches of contract, in various respects, referred to in the Decision, and that allegation succeeded before the Tribunal.[4]However, this was a case in which the Appellant did not present a Notice of Appearance within the time allowed by the Rules. The case was therefore listed for hearing on the basis that no appearance had been entered. The Appellant wrote a letter to ACAS dated 19 May 2000, alleging that the Respondent had misidentified her employers and that the correct employers were not Ladies Own (UK) Ltd, but an organisation named as "Cumberland Leasing Corporation".[5]In paragraph 2 of their Extended Reasons, the Tribunal record that the Respondent then applied to join Cumberland Leasing as a Second Respondent. The Tribunal granted her application. However, Cumberland Leasing also then failed to enter a Notice of Appearance.[6]In paragraph 4 of his affidavit for this appeal, Mr Timothy Barnes, the Managing Director of the Appellant Company, stated that he was informed by the Tribunal that the Notice of Appearance had been received late, and he said this:
"I note from the letter that I could apply for any extension of time to enter a late Notice of Appearance. I truly believed that I would apply for an extension of time to enter a late Notice of Appearance at anytime even at the hearing itself. In any event at around this time I was told not to concern myself too greatly about the matter as the action was going to be defended by Cumberland Limited."
So the position at the date of the hearing on 31 August was that neither Respondent was entitled to appear or to be represented.[7]The Tribunal set out in paragraph 3 of their Reasons what happened then, and that is an important paragraph and we shall record the contents of it in full:
"At the hearing, Mr Tim Barnes, Managing Director of the first respondent was present, and the Tribunal invited argument on the issue, whether either Respondent should be allowed to present a Notice of Appearance out of time and defend the case. Mr Barnes made the statement to the Tribunal that the first Respondent was not the employer, and he was present only as a witness for Cumberland Leasing, which he had understood would be represented at the hearing. The Tribunal decided that in the absence of any application to enter a late Notice of Appearance, the case was not being defended by either Respondent, and it would therefore be for the Applicant to prove her case. The Tribunal did in fact hear evidence from Mr Barnes, having decided of its own motion that the Tribunal should call him as a witness to assist the Tribunal in relation to the facts of the case by his evidence. He was questioned by the Tribunal and by Mr Warren for the Applicant."
[8]It is clear from that paragraph that the Employment Tribunal explain that they had asked Mr Barnes expressly whether he wished to apply for an extension of time, and it is clear that he deliberately chose not to avail himself of that opportunity, and in fact, sought to distance himself from the case, claiming that he was only a witness for the Second Respondent.[9]In the subsequent paragraphs of their Reasons, the Tribunal record their relevant findings of fact, and this included the important finding in paragraph 6 that the Respondent's employer, up to the date of termination of employment, was indeed, the Appellant Company.[10]In the Notice of Appeal, the Appellant alleges that the correct employer was Cumberland Leasing Corporation Limited, and that this Applicant was not dismissed. The Appellant also alleges that a Notice of Appearance was completed on 19 May but acknowledges that it was not received by the Employment Tribunal within the 21 day period.[11]The reasons given in the Notice of Appeal are that the Managing Director, Mr Timothy Barnes, was recruited from the United States of America early in 2000, and that he had no previous experience with the English Courts. He did not therefore appreciate the need to apply for an extension of time to serve a Notice of Appearance and to give reasons, failing which he would be unable to defend the case if he attended the hearing in person, as he clearly did do.[12]He also maintains that he believed the case would be dealt with by Cumberland Leasing and, in paragraph 4, alleged that right up until the evening before the hearing, it was expected that this company would either settle or defend the action, as the correct Respondent.[13]He alleges that in the circumstances, the Tribunal should have exercised their discretion to allow his request to play an active part in representing the client at the hearing, and that by failing to do so they have prejudiced the Appellant's opportunity of having a fair hearing.[14]This being a case in which no Notice of Appearance was entered, and no application for an extension of time made, paragraph 16 of the 1996 EAT Practice Direction applies, and by virtue of paragraph 16.2:
"2 The Appellant will not be permitted to pursue the appeal unless the EAT is satisfied at the preliminary hearing - 1. there is a good excuse for failing to enter a Notice of Appearance and (if that be the case) for failing to apply for such an extension of time; and 2. there is a reasonably arguable defence to the claim in the Originating Application."
In accordance with sub-paragraph 3 of Rule 16, the Appellant, Mr Barnes has sworn an affidavit explaining the circumstances surrounding these events, which we have already made reference to.[15]In accordance with sub-paragraph 4 the Respondent to this appeal has sworn an affidavit in reply. We have considered the affidavits, and the documents exhibited to them, very carefully. Today we have been assisted by way of a Skeleton Argument and oral submissions from Mr Timothy Becker, of Counsel, appearing on behalf of the Appellant.[16]Having considered all those matters, our conclusions are as follows. We find that we are not satisfied that there is a good excuse for the failure to enter a Notice of Appearance or for the failure to apply for an extension of time. It is curious and unsatisfactory that Mr Barnes, asserting as he does, in his Notice of Appeal and in his affidavit, his inexperience of English Tribunal procedure, and his keenness not to do anything to "get the company into trouble", has put forward no grounds for the failure on his part, or the company's part, at any stage of this litigation to seek any legal advice, or indeed to be represented at the hearing. He acknowledges receipt of the Originating Application, informing him of the need to complete a Notice of Appearance, and says that he completed it without legal assistance.[17]Secondly, no clear reason has been given, as far as we can ascertain from the documents, for late delivery of the Notice of Appearance. No reason at all has been given for the complete failure to deliver any Notice of Appearance, by the Second Respondent, who was added to the proceedings at a later stage.[18]Mr Barnes asserts in paragraph 4 of his affidavit that he thought the Notice had been sent to the Tribunal, but he does not explain how or why he so thought, nor does he explain what steps were taken by him or by others instructed on his behalf, to ensure that the Notice of Appearance was sent so as to arrive in time. He claims that, having been informed that Cumberland Leasing would not be playing any part in defending the hearing, he thought he had better attend:
"just in case the Tribunal thought that the Respondent was employed by the Appellant "
. We find that incredible, and we do not accept it. We have seen no correspondence or any other documents produced by Mr Barnes, showing any communication between himself and Cumberland Leasing Limited, or Cumberland Corporation Limited, as it is variously described in his affidavit.[19]We also find it remarkable that when the Chairman of the Employment Tribunal expressly offered Mr Barnes the opportunity at the hearing to apply for an extension of time, Mr Barnes chose not to avail himself of that opportunity, for reasons best known to himself. He does not suggest in the Notice of Appeal that this was an error by the Tribunal, and we do not accept the claim now made in his affidavit for the first time, that he asked to be heard and was refused. We also reject the suggestion at paragraph 12 of his affidavit that his attendance at the hearing should have been treated in itself as an application for an extension of time, and that the Tribunal should themselves have considered extending time of its own motion.[20]It is clear on the particular facts of this case that the Tribunal offered, expressly, an opportunity for such an application to be made, and Mr Barnes, for reasons best known to himself and not shared with this Appeal Tribunal, declined to accept the offer that was extended to him. He therefore makes allegations about the unfairness of the Tribunal, which we find ourselves unable to accept.[21]In the circumstances, we are not satisfied on the evidence of the first ground, (good excuse for failing to enter or apply) under the Rule. Mr Becker drew to our attention the cases of Kwick Save Stores Ltd v Swain & Others [1997] ICR 49 - reported in the Court of Appeal and also the case of Tull & Others v Severin and Another [1998] ICR 1037 - a Decision of this Employment Appeal Tribunal.[22]The case of Tull & Others makes it clear that where individuals who arrive at an Employment Tribunal hearing not having entered an Appearance, but making it clear that they wish to be heard and to defend the claim then the Tribunal should consider the matter of their own motion, as the Employment Appeal Tribunal say, and consider extending the time for presenting a Notice of Appearance.[23]We take the view that the facts of that case are clearly distinguishable from the one presently before us, because in this case, the Chairman of the Employment Tribunal expressly offered Mr Barnes the opportunity to apply for an extension and yet he declined to accept the offer.[24]The case of Kwick Save Stores Ltd v Swain is authority for the proposition that it was encumbent on a respondent applying for an extension of time for serving a Notice of Appearance before a full hearing on the merits has taken place, to put before the Industrial Tribunal all relevant documents and other factual material in order to explain both the non-compliance with Rule 3 of the Industrial Tribunal's Rules of Procedure and the basis on which it was sought to defend the case on its merits.[25]We observe that that case does not provide any assistance for the Appellant in the present case, since the Appellant has not provided us with a detailed explanation that should have been forthcoming if this appeal were to have any prospect of success.[26]Finding ourselves not satisfied of the first limb of Rule 16, that in our view, is an end of the matter. However we also confirm for the sake of clarity, that in any event, we would not have found ourselves satisfied that there was a reasonably arguable defence to the claim from the documentation that we have seen, and the contents of the affidavits.[27]It seems to us, looking at the Decision, that this Tribunal arrived at a clear conclusion on the evidence before them, including apparently, evidence from Mr Barnes who gave some assistance in answer to questions from the Tribunal; and their decision that the Appellant was the correct employer and that there had been breaches of contract entitling the Respondent to resign and complain of constructive unfair dismissal, seem to us to be findings of fact which the Employment Tribunal were entitled to reach, on the evidence they had heard. For all these reasons, we therefore conclude that no arguable errors of law have been identified in this Employment Tribunal's Decision, and we dismiss this appeal.