PHONES DIRECT (UK) LTD v MISS JANE MORGAN [2001] UKEAT 371_00_2603

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 371_00_2603Case No Appeal No. PA/371/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PHONES DIRECT (UK) LTDAPPELLANTMISS JANE MORGANRESPONDENT
Before
Mr Justice LindsayDate 26 March 2001
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) This is the Appeal of Phones Direct (UK) Ltd in the matter Miss Jane Morgan v Phones Direct (UK) Ltd . Phones Direct appeal against the striking out of their appeal. No one is here on behalf of Phones Direct (UK) Ltd. It is now 10.37. Nothing has been heard from that Company and my clerk has sought to make contact with the number which we have for Phones Direct. The woman who answered said that the number was not of Phones Direct and that a Mr Walker, whose name is mentioned in the papers connected with the Company, was no longer employed there. So I shall have to go ahead on the paper.[2]On 28 June 1999 Miss Morgan presented an IT1 for redundancy pay and for withheld earnings. On 1 September 1999 Phones Direct lodged its IT3. They claimed that Miss Morgan had been self employed. On 17 November 1999 there was a hearing before a Chairman alone at Cardiff. Miss Morgan attended. The company did not attend but its Notice of Appearance was before the Chairman and was considered by him. On 25 November the Chairman's decision was sent to the parties. It was the decision of Mr J Thomas sitting alone and it was that "the decision of the Tribunal is that Applicant is entitled to the sum of £137.50 unpaid wages."[3]Summary reasons only were given. On 24 March a Notice of Appeal was received by the Employment Appeal Tribunal from Phones Direct together with a letter of 22 March. Mr A Walker, Director of the Company said amongst other things:
"This Company is a direct sales business and functions in the same manor as many double glazing/bathroom/kitchen/driveway companies where no sales people are paid wages. They are paid for what they sell only This is clearly a case of Miss Morgan fabricating stories of "employment", "wages" and "basics" and looking for someone else to blame for her not doing what she claimed she could do which was sell"
[4]On 28 March the Employment Appeal Tribunal wrote to Phones Direct saying that as only summary reasons had been given for the decision of the Chairman alone Phones Direct would have to apply for Extended Reasons but that if the Extended Reasons were refused then Phones Direct would be able to appeal against that refusal. Nothing was heard from Phones Direct and so on 13 April an "unless" order was made by the Employment Appeal Tribunal, by the Registrar. It said amongst other things:
"IT IS ORDERED that unless written confirmation is received within 7 days from today that an application has been made to the Employment Tribunal for the Extended Reasons for the Decision the Notice of Appeal will be struck out."
[5]On 14 April the Company, Phones Direct wrote to the Employment Appeal Tribunal asking for Extended Reasons. In other words, they have sent their request to the wrong body. However, on 17 April the Appeal Tribunal forwarded that request onto the Cardiff Employment Tribunal. On 25 April Cardiff refused Extended Reasons because the request was out of time by some three months.[6]Unfortunately, the Employment Appeal Tribunal were not told at the time of Cardiff's declining of that request for Extended Reasons and so the Employment Tribunal persisted, not knowing that the reasons had already been asked for and had been declined. On 17 August the Employment Appeal Tribunal wrote to Phones Direct asking, in effect, what was going on. On 25 August, rather strangely, Phones Direct said that they had not heard from the Employment Tribunal. On 17 October the Employment Appeal Tribunal wrote to the Cardiff Tribunal to find out what was happening. On 29 November 2000 the Employment Appeal Tribunal received a copy of Cardiff's letter of 25 April. On 29 November 2000 (the same day) the Employment Appeal Tribunal asked Phones Direct whether it wished to proceed with its Appeal, but nothing was heard. So on 8 December the Registrar made an Order and it said:
"AND UPON the failure of the Appellants to lodge a Notice of Appeal against the Employment Tribunal Chairman's refusal to supply extended reasons notified to the parties in a letter dated the 25 th of April 2000 AND UPON the failure of the Appellants to respond to the Employment Appeal Tribunal letter dated the 29 th day of November 2000 IT IS ORDERED that the aforesaid lodged Notice of Appeal be struck out"
[7]On 11 December Phones Direct indicated it wished to appeal, although it was not entirely clear from its letter whether the appeal was against the substantive decision of the Employment Tribunal or against the Employment Appeal Tribunal's decision of 8 December. On 19 December the Registrar, taking it to be an appeal against her Order, wrote to Phones Direct saying:
"I refer to the above matter and your letter of the 11 th December 2000. The Registrar has directed that this letter be taken as your Notice of Appeal against the Registrar's Order of the 8 th December 2000 striking out your Notice of Appeal. This will now be set down for an inter pates hearing before a Judge and accordingly our Listing Office will be in contact in due course. The hearing will be for you to explain why the Registrar should not have struck out your Notice of Appeal."
And so it is that there is a Inter Partes Hearing today but not only does the Appellant not attend, as I have already mentioned, but neither does Miss Morgan.[8]Turning to the substance of the complaint, there is a clear requirement that an Appeal to the Employment Appeal Tribunal cannot ordinarily be based on merely summary reasons. Thus if an appeal is sought to be so based the would-be Appellant is told to apply to the Employment Tribunal for Extended Reasons and is told also that if those Extended Reasons are refused then the would be Appellant may appeal against that refusal. And that is the message that was given here to Phones Direct on 28 March.[9]Phones Direct did apply for Extended Reasons but they were refused on 25 April. Phones Direct therefore had forty two days from 25 April in order to appeal against that particular refusal. They should therefore have lodged a Notice of Appeal not later than 6 June 2000. But that was not done and, despite the Employment Appeal Tribunal's letter of 17 August, still no Notice of Appeal against that refusal was lodged, nor was there any answer to the Appeal Tribunal's letter of 29 November. Even today there is no appeal against the Employment Tribunal's refusal to supply Extended Reasons.[10]This is not a case where there has been no hearing on the merits. There was one on the 17 November 1999. At that hearing the Employment Tribunal heard oral evidence from Miss Morgan. If the Company could have mounted a convincing argument against her it has no one but itself to blame for not having attended that hearing on 17 November. The Employment Tribunal believed Miss Morgan's evidence. Credibility is essentially a matter for the Employment Tribunal. There having already been a hearing on the merits, the Employment Appeal Tribunal may strike out with a readiness that would not be appropriate if there had been no such first hearing.[11]Phones Direct offers no reason why failed to appeal against the refusal to supply Extended Reasons or, indeed, why it delayed so long after receiving summary reasons on or about 26 November 1999 or as to its not lodging any form of protest until 24 March 2000. The Notice of Appeal based on summary reasons was not even signed by Phones Direct until 22 March, hopelessly out of time even if forty two days ran from the receipt of summary reasons. Nor, of course, is there any explanation for the failure to attend today.[12]All in all, there is no reason to depart from the Registrar's Order of 8 December 2000. I thus determine under Rule 21 that the Appeal of 24 March to the Employment Appeal Tribunal by Phones Direct is to be and to remain struck out and the Appeal against the Registrar's Order is dismissed.