FOODTRACK LIMITED T/A JUICY LUCY v MRS S ORAM [2001] UKEAT 50_01_2606

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 50_01_2606

Case No Appeal No. PA/50/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

FOODTRACK LIMITED T/A JUICY LUCYAPPELLANT

MRS S ORAMRESPONDENT

Before

Mr Justice Lindsay

Date 26 June 2001

[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent The Respondent in person MR JUSTICE LINDSAY (PRESIDENT) I have before me the appeal of Foodtrack Ltd trading as Juicy Lucy in the matter between that company, so trading, and Mrs S Oram. Foodtrack Ltd appeals against the Registrar's refusal to extend time for the lodging of a Notice of Appeal. Mrs Oram is here in person today, but no one attends for Foodtrack Ltd, and I need to give a little explanation how that comes to be.

[2]On 5 April of this year notice was given for the hearing of this matter on 3 May. On 27 April, because one or both parties had found that they might not be able to attend on 3 May because of a rail strike threatened for that day, the hearing of 3 May was vacated and both sides were told that a new notice of hearing would be sent out.

[3]On 9 May, a notice of hearing for 26 June today was sent out to both sides and one went out addressed to Mrs Dinsdale, who is presumably an officer, indeed managing director, of the Appellant Company. On 12 June a reminder was sent to Mrs Dinsdale about Skeleton Arguments being needed seven days before the hearing, mentioning that the hearing was on 26 June. It was sent to Mrs Dinsdale at Foodtrack Ltd, giving the address which ends with the postcode NN8 1EY. On 17 June, as Mrs Dinsdale asserts in a letter that day, she got for the first time the letter of June and she claims that that was the first indication she had had of the hearing fixed for 26 June. She was, in effect, saying that somehow or other the Notice of 9 May had not got through to Foodtrack Ltd, or, at any rate, to her. She protested that in conversations that had been held in April or so, when the case was needing to be fixed, she had indicated that she was not able to attend for a hearing in the last week of June, and yet that is exactly what had come to pass.

[4]On 21 June the Registrar wrote to Mrs Dinsdale indicating that 26 June remained fixed as the date for the hearing and reminding that a notice of hearing had been sent out on 9 May. On 25 June, yesterday, Mrs Dinsdale wrote again to protest the fixing of 26 June as the hearing date, indicating that she would not be attending. She also complained that the Employment Appeal Tribunal had been using the name Foodtrack Ltd in communications addressed to the Appellant, whereas the company was known as Juicy Lucy. In fact the IT3 itself gave the company name as Foodtrack Ltd, and it is always correct to address a company by its strict company name rather than by some trading name.

[5]The notice of the hearing of 9 May fixing 26 June, today, as the hearing date has not been returned to the Employment Appeal Tribunal by the Post Office and there is no reason to believe that it was not delivered to Foodtrack Ltd in the ordinary course of the post. No reason is given by Mrs Dinsdale as to why she finds 26 June an inconvenient or indeed impossible date. Merely to indicate that she had earlier said that it was inconvenient or impossible does not suffice and there is no evidence, properly so called, that today cannot be usefully deployed as the hearing date.

[6]No reason at all is given why she cannot attend today or why the company should not be represented today, and it needs to be borne in mind that if Foodtrack, as a limited company, has made inadequate arrangements for the receipt of mail due to be addressed to it in its company name it has no one but itself to blame. It has to be remembered also that Foodtrack is a limited company. It does not follow, simply because the managing director finds it inconvenient or indeed impossible to attend today, that the limited company cannot be adequately represented or arrange representation, either by solicitors or Counsel or by representative, or by some other director, or by a company secretary. Simply for Mrs Dinsdale to be unable to attend by no means indicates sufficiently that the company cannot usefully take up today as the hearing date, and so, in the light of those circumstances, it seems to me right that the matter should go ahead, particularly since it also needs to be borne in mind that Mrs Oram has attended today in person.

[7]So, looking at the merits of the matter, they are as follows: on 17 May 2000 Mrs Oram presented an IT1 for unfair dismissal. On 1 June 2000, the Respondent Company put in its IT3. On 24 October there was a hearing, and on 10 November the Decision was sent to the parties. It was:

"1. The Applicant [Mrs Oram] was dismissed for a reason connected with her pregnancy and accordingly was unfairly dismissed; 2. The Applicant's complaint of sex discrimination under section 1(1)(a) and section 6(2)(b) of the Sex Discrimination Act 1975 is well founded. 3. It is ordered that the Respondents do pay to the Applicant: (i) a basic award of £76; (ii) compensation pursuant to section 65 of the Sex Discrimination Act 1975 amounting to a total sum of £2262.22 and £44.83 in interest pursuant to the Employer Tribunals (Interests on Awards etc) Regulations 1996."

At the hearing Mrs Oram had appeared in person and Mrs Dinsdale had appeared as or for Foodtrack Ltd, trading as Juicy Lucy.

[8]That Decision, as I mentioned, was sent to the parties on 10 November of last year. On 19 November Foodtrack asked the Employment Tribunal for a review. On 19 December there was a date put to a document purporting to be a Notice of Appeal from Foodtrack and the date on an accompanying letter addressed to the EAT but neither was received at the Employment Appeal Tribunal then or thereabouts.

[9]On 22 December, the forty two days, which is the period limited for the lodging of a timely Notice of Appeal, expired, running from 10 November 2000, which was the date at which time started running for the forty two days; no Notice of Appeal had by then been received by the Employment Appeal Tribunal.

[10]So far as one can tell from an examination of the letter which Foodtrack sent to the EAT, 29 December was the date of the postmark on the envelope which enclosed the Notice of Appeal I shall next mention. On 2 January of this year, the Employment Appeal Tribunal received the envelope which had within it the Notice of Appeal. On 19 January the Employment Appeal Tribunal advised Foodtrack that it was eleven days out of time. On 29 January the Employment Appeal Tribunal refused Foodtrack a review; on 31 January Foodtrack applied for an extension of time to the Employment Appeal Tribunal, claiming that it had posted the Notice of Appeal on 19 December.

[11]There was then correspondence which included, on 5 March, Foodtrack's final submissions. On 6 March the Registrar made her Order refusing to extend time. The latter part says:

"AND UPON FURTHER CONSIDERATION of the Judgment given in UNITED 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 Notice of 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 be refused."

The AbdelGhafar case is a familiar authority which gives guidance in this type of case.

[12]On 13 March Foodtrack appealed the Registrar's Order. Foodtrack asserts that the Notice of Appeal was posted on 19 December, and moreover, that it could not have been posted on 29 December, as Mrs Dinsdale was then on holiday, although it is not in terms said that Mrs Dinsdale actually herself was the sender or actually herself saw to its being posted in the postbox.

[13]On 26 March the Employment Appeal Tribunal pointed out that the envelope was, in any event, insufficiently stamped. No excuse or explanation has been offered save that the Notice of Appeal was posted on 19 December. However the Registrar, on examining the envelope, concluded that it was posted on 29 December, a Friday. That would be ordinarily consistent with its receipt by the EAT on Tuesday 2 January. A posting on 19 December would not be normally consistent with receipt on 2 January of the following year, this year, 2001, and Foodtrack has not asserted that the postmark is not of 29 December.

[14]I should add that Foodtrack's correspondence seems to contemplate that the forty two days run from the Appellant's first receipt of the Employment Tribunal's Decision ; it does not. The forty two days is relatively generous but runs from the Employment Tribunal's sending out of, rather than the receipt of, the Extended Reasons. In other words, in this case time ran from 10 November, and the notes that are sent out by Employment Tribunals with Decisions make it abundantly clear that if there is to be an appeal it is to go to the Employment Appeal Tribunal; they specify the date by which Notice of Appeal must be served and they even give the address of the Employment Appeal Tribunal so that anyone intending to appeal has clear information in front of them.

[15]So, even if the Notice of Appeal was sent on 19 December, Foodtrack was cutting things fine, especially given that that was the Christmas postage season. However, I have no sufficient reason to disbelieve that the crucial envelope was posted on 29 December and moreover, was under-stamped.

[16]I have therefore, looking at the United Emirates case no good reason to grant the relatively exceptional relief of an extension of time for the lodging of a Notice of Appeal. Accordingly I dismiss the appeal.