MR M BOVENSIEPEN & OTHERS T/A THORNTON HILL RETIREMENT AND CROMWELLS NURSING HOMES v MRS P M BULCOCK [2002] UKEAT 1263_01_2501

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1263_01_2501Case No Appeal No. EAT/1263/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M BOVENSIEPEN & OTHERS T/A THORNTON HILL RETIREMENT AND CROMWELLS NURSING HOMESAPPELLANTMRS P M BULCOCKRESPONDENT
Before
Lord Gladwin of CleeDate 25 January 2002
[1]APPEARANCES For the Appellants MR R BOVENSIEPEN THE APPELLANT IN PERSON MR COMMISSIONER HOWELL QC In this case Mr Robert Bovensiepen, the former proprietor of a residential care home in Skipton, seeks to be allowed to pursue an appeal against the decision of the Employment Tribunal sitting at Leeds on 20 February 2001 embodied in a summary statement of reasons sent to the parties on 22 March 2001, at pages 12 – 15 of the Appeal file before us.[2]The proceedings before the Tribunal had been brought by a Mrs Patricia Mary Bulcock, by originating application dated 7 November 2000, naming Mr Robert Bovensiepen who appeared before us, his brother Mr Ian Bovensiepen, and a Mr T Pryke, as the employers trading as Thornton Hill Retirement and Cromwells Nursing Homes. The complaints made were of unfair dismissal, an unpaid redundancy payment and a claim for breach of contract for an unpaid period of notice, to which there is for present purposes no dispute Mrs Bulcock was entitled, because of the length of her employment. She was dismissed on the ground of redundancy when the home closed on 13 August 2000.[3]Her proceedings were successful before the Tribunal, at any rate in some measure because no effective part in defending them was taken by Mr Bovensiepen or on his behalf. He informed us that his brother, Mr Ian Bovensiepen had ceased to be an effective partner or owner of the business by the time of the events that concern us and Mr Pryke was in fact his accountant not an owner or partner in the business at all. However Mr Pryke had substantial charge of the management of his business affairs including dealing with such matters as the defending and dealing with legal proceedings brought against Mr Bovensiepen in the Employment Tribunal. What seems to have happened is that, for reasons for which the blame lies somewhere between Mr Pryke and a lady who was employed by Mr Bovensiepen as his secretary to deal with correspondence and documents on his behalf, no action at all was taken to lodge a Notice of Appearance before the Employment Tribunal within the prescribed time for Mr Bovensiepen to be permitted to take part in the proceedings at the Employment Tribunal at all. It was only after the date had been fixed for hearing, and indeed only the day before that date, 19 February 2001, that any action at all was taken on behalf of Mr Bovensiepen.[4]That, as recorded in the Tribunal's Summary Statement of Reasons, was a most inadequate action because it consisted simply of the sending of a fax by Mr Pryke to the Tribunal on 19 February. As quoted in paragraph 2 of the Tribunal's Summary Reasons, this said only that:
"Unfortunately our representative is unable to attend the hearing tomorrow at 12pm due to circumstances beyond his control, we would like to ask for a postponement of the hearing and will gladly attend on any other date. We are faxing and hand delivering this written evidence for our defence which we hope will be taken into consideration"
[5]As recorded by the Tribunal, the documentation attached dealt in part with an incident which took place as far back as 1998 and there was in addition some correspondence in relation to the termination of the Applicant's employment. But as recorded by the Tribunal Chairman, no grounds were given on which the claim was disputed and no explanation was given either for the late presentation of even that inadequate documentation. In those circumstances the Tribunal Chairman who was sitting alone on 28 February 2001, recorded that the Respondent had not entered an Appearance and did not appear. He decided to refuse the request for a postponement, and also to refuse what he took as the application to enter a Notice of Appearance out of time, which was a matter on which he was required to exercise his discretion in favour of the Respondent if he was to be permitted to defend the proceedings at all. The Chairman then proceeded to determine the merits of the claim, awarded Mrs Bulcock a total of £2043.63, made up as to £333.83 for unpaid notice pay, £1197.00 redundancy pay to which Mr Robert Bovensiepen did not dispute she was in any event entitled, and finally a compensatory award of a fairly modest amount of £512.80 for unfair dismissal.[6]The summary reasons incorporating that decision were sent to the parties by the Tribunal on 22 March 2001, and again no effective steps were taken on Mr Bovensiepen's behalf to pursue any question of dispute or appeal against that decision in the way that an unsuccessful Respondent is required to act if there is to be any scope for the decision to be queried or set aside.[7]Under the 1993 Tribunal Procedure Rules which apply to this Tribunal Hearing in February and March 2001, there is a requirement that if an unsuccessful party wishes to pursue an appeal against the Tribunal's decision to this Appeal Tribunal, then as a precondition a statement of Extended Reasons has to be asked for within 21 days of the sending of the statement of Summary Reasons. That request should have been lodged with the Employment Tribunal by 12 April 2001. Again that was not done. We were told by Mr Bovensiepen that that was the fault again of the lady who acted as secretary, who should have drawn this to the attention either of Mr Pryke or of Mr Bovensiepen himself but failed to do so.[8]No effective action was taken to request a statement of extended reasons from the Tribunal until at least the beginning of July, when the need to obtain a statement of extended reasons had been drawn by the Appeal Tribunal to the attention of those then acting on behalf of Mr Bovensiepen after an attempt at lodging an appeal had been made. At the earliest, a request for the Tribunals reasons were made by letter dated 3 July 2001. A copy of that is at page ten of the appeal file before us, in the name of Mr Bovensiepen but signed by someone else in the firm of accountants acting on his behalf. However even that application for a statement of extended reasons appears to have been ineffective because there is no record of it having been received at the Employment Tribunal Office. Again a substantial further lapse of time took place until the matter was pursued on Mr Bovensiepen's behalf, and finally a further application was made to the Employment Tribunal on 3 October 2001; after Mr Bovensiepen had, as he told us, belatedly begun to take a personal hand in the conduct of the matter. That letter, on page 9 of the appeal file, repeated the request for a statement of reasons, and not surprisingly after such a lapse of time the Employment Tribunal recorded that the Chairman had declined to give a statement of extended reasons. The request was long out of time, certainly by October but indeed also substantially out of time even if a proper request had been lodged in July.[9]In those circumstances Mr Bovensiepen very fairly admitted that the failure to comply with the requirements of the Employment Tribunal, and also of this Tribunal for the lodging of a statement of extended reasons in accordance with rule 3 of the Employment Appeal Tribunal rules, if an appeal is to be pursued, was all the fault of employees and agents who he had trusted to deal with such matters on his behalf.[10]Nevertheless, he asks us to exercise the discretion we have under rule 39 of the Employment Appeal Tribunal rules to waive the defects in procedure and to allow him to pursue an appeal against the Tribunal's decision, though as it emerged in the course of argument before us, the effective scope for any successful appeal seems likely to be limited only to the £500-odd awarded for compensation for unfair dismissal, since the other sums awarded appear not to be the subject of dispute.[11]Matters may have been unfortunately conducted so far as Mr Bovensiepen is concerned, but there can be no denying that he as the employer or principal has to take responsibility for the failures on the part of those employed by or acting as authorised agents for him, to comply with the procedural rules that every respondent to an Employment Tribunal application and every intending appellant before this Tribunal is required to observe. We have taken into account everything that Mr Bovensiepen in his fairly and moderately argued submission said to us, but we have not at the end of the day been satisfied that there are sufficient grounds in this case for waiving what appear to be repeated failures on the part of those acting for him to comply with the clear requirements of the rules, at this Tribunal and below, for which there is really no adequate explanation.[12]Even if we were minded to exercise our discretion to waive the failure to provide an extended statement of reasons in support of the Notice of Appeal, we have reached the clear conclusion that there would in any case be no sufficiently arguable ground on which an appeal could be pursued against the decision of the Tribunal sitting on the 20 th of February. That is because we have not been persuaded that there could be any arguable ground in law for saying that the Tribunal Chairman erred in deciding to go ahead with the case on the 20 February 2001 on the basis of the evidence and documentation that was before him, which plainly failed to provide any defence to the claims made.[13]In our judgement, this being a matter for the procedural discretion of the Tribunal Chairman under rule 31 of the Employment Tribunals Rules of Procedure Regulations 1993 , there is no arguable ground for saying that the Chairman misdirected himself or erred in law in deciding to proceed with the case as he did. We say that in view of first, the total failure of the Respondents' agents and or employees to comply with the requirements of the rules as to entering the Notice of Appearance, if they were to take part in the proceedings at all, and second the inadequate and belated explanation which was all that was put forward by way of a fax the day before the hearing seeking a postponement.[14]For those reasons, we have decided that it is not right for us to exercise the discretion to allow this appeal to proceed at all. We therefore refuse the application to admit it notwithstanding the absence of a statement of extended reasons, and insofar as the appeal is before us at all as a full appeal, we unanimously dismiss it.