ABBEYCROWN (SOUTH WEST) LTD v MR M S MOURAD [2001] UKEAT 555_00_2401

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 555_00_2401

Case No Appeal No. PA/555/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

ABBEYCROWN (SOUTH WEST) LTDAPPELLANT

MR M S MOURADRESPONDENT

Before

Mr Justice Lindsay

Date 24 January 2001

[1]APPEARANCES For the Appellants THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the Respondent THE RESPONDENT IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : I have before me the appeal of Abbeycrown (South West) Ltd in the matter Mr M S Mourad v Abbeycrown (South West) Ltd . Today Mr Mourad appears here in person. He tells me he has come from Torquay and that the arrangements made have lost him something or the order of two days work in order to procure his presence here today. The Company does not appear. This morning I received a fax that says this:

"1) Could the Chairman at this late stage adjourn the hearing due at 10.30am as there seems to be a total confusion as to our legal representation. We the company are convinced that we have appointed Bevan Ashford as the company's Solicitors. 2) In the event of being refused please consider the case on the papers supplied notwithstanding that they are with Bevan Ashford and not with us."

Had someone attended for the Company and had they made out a case that there had been some confusion as to whether the Company or the solicitors for the Company would appear today, and had adequate arrangements been made as to costs, it would have been perhaps possible for the matter to have been adjourned. But as no one does attend and as no arrangements are offered in relation to Mr Mourad's costs and, as will appear during the course of the chronology, as similar confusions have been said to arise before, I do not propose to adjourn the matter, but to go ahead and consider the case on the papers, as that note suggests as an alternative. Accordingly, I go ahead with the matter. The Company's appeal to the EAT has been struck out because no extended reasons were given by the Employment Tribunal and there has been no indication of an appeal against the Employment Tribunal's refusal to supply extended reasons. The matter has been substantially delayed and has been left ineffective despite correspondence from the Employment Appeal Tribunal.

[2]The chronology begins with the 26th November 1999 when Mr Mourad presented an IT1 for wages in lieu of notice, for holiday pay and for moving costs. The IT1 was in the first place directed only to a Mr Dilip Patel, who, it seems, is an officer of the Company. Mr Mourad asked for:

"One weeks notice pay (as per my weekly salary on 3/9/99) 225.00 Two weeks holiday pay 450.00 Cost of moving from Teignmouth to Torquay 300.00 £ 975.00"

He had been employed only from the 1st March 1999 to 3rd September 1999, just over six months, by this particular company.

[3]On 2nd December 1999 the respondent, now identifying itself as properly to be Abbeycrown (South West) Ltd said:

"It is accepted that some holiday pay and notice, less normal deductions, is possibly due. The claim for removal expenses is totally disputed."

[4]The hearing was adjourned from the first date provisionally arranged for it, 31st January 2000, to 1st March 2000 as the Company wished an adjournment in order to consult solicitors in relation to an amendment to Mr Mourad's IT1.

[5]On 1st March 2000, the date fixed for the hearing, the Company, it seems, sent a Mr Lott down to the Employment Tribunal but he had apparently been made redundant by the Company that very morning and was unable or unwilling to represent the Company. The Company had, I think, earlier been refused some further adjournment. So the hearing went ahead on 1st March 2000 before the Chairman, Mrs Harper, sitting alone. The Company did not attend because Mr Lott chose not to represent it, and the matter went ahead, therefore, in the Company's absence.

[6]On 3rd March 2000 summary reasons were sent to the parties. The decision was that Mr Mourad's claim for unlawful deduction from wages was well founded and the Company was ordered to pay to him the sum of £550 less deductions for tax and national insurance contributions; and also the Company was ordered to pay damages to Mr Mourad in the sum of £1,440.

[7]On 26th April 2000, which is a substantial time thereafter, a date was put on to a Notice of Appeal by the Company. I am not sure what date the Notice of Appeal was received by the Employment Appeal Tribunal as the copy I have has no stamp on it, but the date that the Company put on it was 26th April 2000.

[8]On 10th May 2000 the Employment Appeal Tribunal pointed out to the Company that if there was to be an appeal then extended reasons were needed and that, in effect, the Company should apply to the Employment Tribunal for extended reasons.

[9]However, notwithstanding that having been pointed out in correspondence by the EAT, nothing was heard further from the Company.

[10]Accordingly, on 19th June 2000 the Registrar at the EAT made an order which said this:

"AND UPON the Appellant having been informed by letter dated 10 May 2000 that there is no jurisdiction to hear an appeal solely in respect of Summary Reasons IT IS ORDERED that unless confirmation in writing is received within 7 days from the date of this Order than an application has been made to the Employment Tribunal for the Extended Reasons for the Decision the Notice of Appeal will be struck out."

[11]On 23rd June 2000 Messrs Bevan Ashford, Solicitors, wrote to the Employment Appeal Tribunal indicating that they had that day, 23rd June 2000, faxed a request for extended reasons to the Employment Tribunal in Exeter. On the same day the solicitors wrote to the Employment Tribunal saying this:

"We have been instructed in this matter today. We understand that our client, who has previously been unrepresented in this matter had in error submitted an appeal application to the Employment Appeal Tribunal without first having obtained extended reasons of the Tribunal decision dated 3rd March 2000. We also understand that our client's Mr Patel has spoken to Mark who has stated that extended reasons for the decision are held on the Tribunal file. Our client, through a misunderstanding of the procedure, failed to formally request these in writing within 21 days of receipt of the Summary Reasons, and although an appeal was promptly submitted to the Employment Appeal Tribunal, our client was not aware of the strict timescales within which to apply for extended reasons. For this reason the request has been made out of time. In the light of the above circumstances, we shall be grateful if you would invite Mrs O'Harper [ that is an incorrect reference to the Chairman, Mrs O. Harper ] to reconsider her refusal to grant leave to issue extended written reasons to the Respondent."

It is a slightly strange letter because it suggests that there had been an earlier request for extended reasons, earlier than the 23rd June 2000 and an earlier refusal, but those are not in the papers.

[12]On 7th July 2000, in response, no doubt, to Messrs Bevan Ashford's letter application, the Employment Tribunal, by Mrs Harper, declined to give extended reasons and in paragraph 3 of the decision to that end, Mrs Harper wrote this:

"The Chairman notes that the grounds for the application for extended reasons relate to the respondent's alleged misunderstanding of the procedure and strict timescales. The Chairman notes that the respondent is not unfamiliar with Tribunal proceedings having been a party in proceedings at this Tribunal in recent months in following cases: [Then five separate matters are listed by reference to their Employment Tribunal numbers] and would have received documentation with the decision setting out the timescales and procedure. Accordingly having given due consideration to the above, the request for extended reasons has not been made in accordance with Rule 10(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 (Schedule 1) and the application for extended reasons out of time is refused."

[13]On 23rd August 2000 the Employment Appeal Tribunal wrote to the Company saying:

"If it is your intention to pursue the above matter you must provide a copy of the Employment Tribunals extended written reasons. If you have been refused extended reasons and wish to appeal against the refusal you must confirm in writing. Please let me have your response within 7 days of the date of this letter."

Of course, at that stage the Employment Appeal Tribunal had not been told of Mrs Harper's refusal of extended reasons of 7th July 2000.

[14]On 30th August 2000 the Company asked for further time as they thought that solicitors were acting for them – a plea which, of course, is not unlike the one that I mentioned earlier in relation to the Company's note to me of 24th January 2001 – and they added that the individual dealing with the matter had only just returned from holidays. On the same day, 30th August 2000, the Employment Appeal Tribunal extended time for the provision of information for a further seven days; even so, nothing was heard.

[15]On 15th September 2000 the Registrar made an Order that concludes as follows:

"AND UPON the failure of the Appellant to provide extended reasons in respect of the aforesaid decision in accordance with Rule (3)(c) of the Employment Appeal Tribunal Rules 1993 or lodge an appeal against any refusal to provide extended reasons that the Employment Tribunal may have issued AND UPON the failure of the Appellant to comply with the Order of the Employment Appeal Tribunal dated the 30th day of August 2000 IT IS ORDERED that the aforesaid lodged Notice of Appeal be struck out"

[16]On 18th September 2000 the Company indicated that it would be appealing against the Registrar's Order.

[17]As I mentioned earlier, I shall consider the matter on the papers, the alternative which the Company's note of 24th January 2001 suggested as an alternative.

[18]The law is quite clear that for an appeal to the Employment Appeal Tribunal extended reasons are, in general, a prerequisite, although there can be an appeal against a refusal to supply extended reasons and that in an appropriate case where there has been a refusal to supply extended reasons an appeal can be proceeded with at the Employment Appeal Tribunal as if the summary reasons were, in effect, extended reasons. But the Employment Appeal Tribunal is entitled to expect expedition. That is to say a prompt application for extended reasons, especially where the particular need for them has been underlined by correspondence from the Employment Appeal Tribunal and, going on, if extended reasons have been refused by the Employment Tribunal, the Employment Appeal Tribunal is entitled to expect a prompt appeal against that refusal or a prompt application that the appeal should proceed on summary reasons. Now here there was a prompt application for extended reasons, at any rate once the particular need for them had been underlined to the Company, because Bevan Ashford's application of 21st or 23rd June 2000, albeit already out of time under the Rules, was at least a prompt act after the reminder on the topic which the Employment Appeal Tribunal had sent out. But, despite the Employment Tribunal's refusal to give extended reasons on 7th July and despite the Employment Appeal Tribunal's letter of 23rd August and despite the extension of time given to the Company in order to take advice and consider matters further, nothing was heard by the EAT. In the ordinary way, a period of six weeks or 42 days from the sending out to the parties of a decision is the appropriate interval allowed by the Rules for an appeal to be lodged at the Employment Appeal Tribunal. If such a period were to be applicable to the period following the refusal of extended reasons on 7th July 2000, then time for that appeal would have expired on 18th August 2000. The striking out was not until 15th September 2000. The Employment Appeal Tribunal is entitled to expect a prospective appellant to conduct its appeal with good attention to time limits and to the insuring of as earlier resolution as is practicable of whatever issues are sought to be raised. One cannot describe Abbeycrown's progress in this matter in any such way. No error of law, as it seems to me, exists to undermine the Registrar's striking out of 15th September 2000. Accordingly, I dismiss the appeal and strike out the Notice of Appeal. [An application by Mr Mourad for costs]

[19]The difficulty is that the ability to order costs in the Employment Appeal Tribunal is not as wide as it is in the High Court. In the High Court, generally speaking, if you win you get your costs, very broadly, and you have won, and if this was a High Court case there would be no difficulty in awarding you costs. But deliberately to make life easier for parties and less expensive for parties at the Employment Appeal Tribunal, the Rules as to costs are much more limited than they are in the High Court. In Rule 34 of the Employment Appeal Tribunal Rules 1993 it says: (1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings." So I need to be satisfied that the present proceedings, that is to say the appeal against the striking out, was unnecessary; well, it was necessary in the sense that the only way that Abbeycrown could take the matter further would be by appealing. Were they improper or vexatious? Well I do not think they could be described as that; they failed but I do not think one can describe them as improper or vexatious. Has there been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings? Well, there has been unreasonable delay generally on the part of Abbeycrown but I do not think one can say that there has been unreasonable delay in this particular appeal because they lodged the appeal against the Registrar's order very promptly. I fear, Mr Mourad, that I am not in a position to be able, under the Rules, to give you an order for costs. It is a pity because you have come here and you have won, but the Rules are limited and I am afraid I cannot help you.