OMEGA TEAM CARERS LTD v MR B WALLACE & OTHERS [2002] UKEAT 431_01_1502

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 431_01_1502Case No Appeal No. PA/431/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
OMEGA TEAM CARERS LTDAPPELLANTMR B WALLACE & OTHERSRESPONDENT
Before
Mr Justice LindsayDate 15 February 2002
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondents NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS MR JUSTICE LINDSAY (PRESIDENT) : In this matter Omega Team Carers Ltd appealed against the refusal by the learned Registrar to extend time for the lodging of a Notice of Appeal.[2]No one appears before me on behalf of the Appellant, Omega Team Carers, or on behalf of any of the seven individual Respondents. Seven individuals brought proceedings by way of IT1s against Omega. None of their IT1s is in the current bundle before me. So far as one can tell they were lodged for hearing at the Tribunal at Reading.[3]On 6 September 2000 a notice of a transfer was sent out indicating that the cases were transferred from Reading to Southampton for hearing on 11 October 2000. On 7 September 2000 a notice was given by the Employment Tribunal of some cases to be heard at Southampton on 11 October but, instead of specifying the cases as being against Omega Team Carers, the notice that I have in my papers gives as the Respondent, Ms Loretta Platt, whom it seems was the Managing Director of Omega.[4]On 11 October 2000 there was a hearing at Southampton. The company did not appear and only two of the Applicants attended. The application made by Miss Foster was dismissed.[5]On 25 October the decision of the Tribunal at Southampton was sent to the parties. Different sums were declared to be payable by Omega to different Respondents; for example, in the case of Mr Wallace £1,365.27 was held to have been unlawfully deducted from his wages and Omega was ordered to pay that sum.[6]On 20 November 2000 Omega wrote to the Employment Tribunal as if appealing to the Employment Tribunal in respect of the orders to pay Mr Wallace, Mr James and Mr Boyce. Their letter began:
"We are writing to appeal against the payments given to B. Wallace, R. James and J. Boyce on the following grounds [and then the grounds were stated]."
On 6 December the Employment Tribunal simply acknowledged receipt of that letter and indicated that it would be replied to in due course by the Chairman concerned, Mr M.C. Craft.[7]On 11 December 2000, the 42-day period in which an appeal against the decision sent out on 25 October would have been possible expired.[8]On 17 January 2001 the Employment Tribunal answered the letter that Omega had written on 20 November, treating it as if it had been an application for a review of the decision of 25 October and indicating that on that basis it was out of time and adding:
"The letter from the respondent is stated to be an appeal but an appeal cannot be dealt with by the Employment Tribunal and should be made to the Employment Appeal Tribunal."
It may be noted that there was a considerable interval between Omega's letter of 20 November and that answer on 17 January 2001.[9]Having been told that appeals had to go to the Employment Appeal Tribunal, Omega then sent a Notice of Appeal on 13 March to the Employment Appeal Tribunal, appealing as to the Wallace, James, Boyce, Fryer, Charlesworth and O'Regan Decisions. Again, there is a striking delay from 17 January, when the Employment Tribunal indicated that appeals had to go to the EAT, and 13 March, when Omega actually put in the Notice of Appeal.[10]On 27 March the Employment Appeal Tribunal told Omega that it was 97 days out of time. On 6 April Omega pointed out that they had applied, albeit wrongly, to the Employment Tribunal well within the 42 days and they suggested that, surely, the Employment Tribunal should have taken less time than they had to indicate to Omega that the proper course for an appeal was to the Employment Appeal Tribunal. The Employment Tribunal had taken 58 days from 20 November to 17 January.[11]As is its ordinary practice, there having been an application for an extension of time, the Employment Appeal Tribunal asked for the views of the other side but not all of Mr Wallace and the others, despite several reminders that they should put in their opposition if they wished to have it considered, put in any opposition to the application for an extension of time by Omega.[12]On 18 July 2002 Omega put in its final written submissions. On 7 August 2001 the Registrar made an order refusing an extension of time and on 18 August Omega appealed against that refusal.[13]That is the chronological background. Coming to the foreground, so to speak, the letter from the company received here on 16 February, signed, as it would seem, by the Managing Director, said that the company had ceased trading. I shall soon be setting out some further information which is needed if there is to be a fully informed decision in this matter, but if the company is on the brink of liquidation it may consider that it is hardly worthwhile for it to pursue this appeal in the Employment Appeal Tribunal.[14]So the first step I require to be taken is that the Employment Appeal Tribunal should write a letter to Omega asking if it wishes, nonetheless, to pursue this appeal. If it indicates it does not wish to pursue the appeal or if, by the expiry of 14 days from the date of the sending out of the letter by the Employment Appeal Tribunal, no answer has been received, then the appeal should be restored to me simply for its dismissal. But let it be supposed that the company wishes to continue with its appeal, there is here far too much information missing and matters unexplained to be able to deal with the appeal in an informed way at this stage.[15]Thus, firstly, the original IT1s are needed. Were they against the company or Mrs Platt, or both? The Notice of Hearing of 7 September from Southampton names the Respondent as Platt but the decision, as it emerged, was against the company.[16]Secondly, can we have a copy of all notices of application sent out to the Respondent company in respect of the seven different claims. The company disputes what notices were sent and to whom they were addressed and when they were received.[17]Thirdly, can we have a copy of every Notice of Hearing, being a Notice of Hearing for the 11 October 2000, sent out either by the Reading Office or Southampton, and in respect of any or all of the seven separate claims which ultimately marched together.[18]Fourthly, it is unclear whether the decision sent out on 25 October 2000 was accompanied at the time by Extended Reasons. The Extended Reasons now at pages 45 and 46 of the current bundle are signed, quite separately, and are undated, and appear to be separate from the Decision itself, which is pages 43 and 44. If the Extended Reasons were sent out separately it will be necessary to know when they were sent.[19]Fifthly, the company repeatedly refers to a letter from the Employment Tribunal dated 13 November 2000 which it says told it that it had 14 days to appeal. This letter, if it exists at all, is not in the present bundle so the question is, was there a letter from the Employment Tribunal of 13 November, and, if there was, to whom was it sent and what did it say?[20]Lastly, the Employment Tribunal took 14 days to write even an acknowledgement to the company's letter of 20 November (that is to say, from 22 November, let us say, to 6 December) and a full 56 days before answering in substance. The company argues with some force that if only the Employment Tribunal had replied on 6 December to say that it could not take appeals and that the company, therefore, had to go to the Employment Appeal Tribunal if it wished to appeal, the company would at any rate then have had some four or five days in which to lodge a timely appeal. We should ask of the Employment Tribunal at Southampton whether it has any, and if so what, system to detect appeals which are misdirected to it or to inform would-be appellants after they have written to the Employment Tribunal, as if to appeal, that they must instead direct their papers to the Employment Appeal Tribunal.[21]I adjourn this matter generally for the Employment Appeal Tribunal to write to the Employment Tribunal on these points depending, of course, on the answer from the company in relation to the first question of whether it truly wishes to pursue the appeal, given that it has given up trading.[22]The Employment Appeal Tribunal will write to the parties if the appeal is to be pursued when this information has been collected. There will then have to be arrangements for a further hearing. Against that background, I simply adjourn it generally, with liberty to restore.