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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Grahams Garden Machinery Ltd v. Warne [2010] UKEAT 0155_10_0705 (7 May 2010) URL: https://www.bailii.org/uk/cases/UKEAT/2010/0155_10_0705.html Cite as: [2010] UKEAT 155_10_705 (7 May 2010), [2010] UKEAT 0155_10_0705 (7 May 2010) |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR NICHOLAS SPROULL (of Counsel) Instructed by: Messrs Coodes Solicitors Elizabeth House Castle Street Truro TR1 3AP |
For the Respondent | MR DAVID CURWEN (of Counsel) Instructed by: Messrs Lyons Davidson Solicitors Victoria House 51 Victoria Street Bristol BS1 6AD |
SUMMARY
PRACTICE AND PROCEDURE
New evidence on appeal
Review
Costs
Admissibility of fresh evidence on appeal. Principles to be applied when exercising discretion on review application to Employment Tribunal. Costs in the appeal where the unreasonable conduct related to proceedings before the Employment Tribunal.
HIS HONOUR JUDGE PETER CLARK
Background
"We have recently been instructed by the above named client in respect of this claim. We do appreciate that the limitation date for the submission of the ET3 in respect of this matter was 23 December 2009. Our client was under the mistaken impression that the period to submit the ET3 form had been extended due to a letter from ACAS explaining their difficulties with workload. However this coincided with our offices being closed for the Christmas and New Year period and only opening today. We have accordingly submitted, by way of attachment to this email a protective ET3 form on the office reopening today. We would therefore respectfully request the Tribunal to exercise its discretion in respect of this claim to extend the period for the submission of the response in the interests of equity and justice."
"Your application for a review of the decision not to accept the ET3 was referred to Employment Judge Hollow.
This is potentially a large claim given the Claimant's age and loss. The delay in seeking a review is not great. The explanation given for not filing the ET3 is not a good one; there is nothing in the ACAS letter to support the Respondent's argument and they had access to legal advice. These are only factors and not determinative of themselves. It further appears that the Respondent waited several weeks before contacting their solicitors.
Taking all these matters into account I do not review or revoke the decision not to accept the ET3."
Preliminary Issue
"We have read some of the correspondence exhibited to the affidavits, but have paid little attention to the contents of the affidavits themselves. As an appeal to this tribunal is only on a question of law, we find difficulty in understanding the basis on which the employers could properly file affidavit evidence on matters which could, and should, have been put before the industrial tribunal chairman on the applications for extensions of time. Reference was made to the decision of this appeal tribunal in Charlton v Charlton Thermosystems (Romsey) Ltd [1995] ICR 56 which sets out a procedure for affidavit evidence by an appellant who has never entered a notice of appearance and is seeking to appeal against a substantive decision on the merits reached adversely to him. In those cases the appeal tribunal laid down a procedure, at p. 60E-H, so that the tribunal could be satisfied that the appellant against the substantive decision had a reasonably arguable defence on the merits, as well as a satisfactory explanation for his failure to enter a notice of appearance or to apply for an extension of time for entering a notice of appearance. If the tribunal were not satisfied on those matters, then the appeal would be dismissed at a preliminary hearing.
These cases are not, however, appeals against a substantive decision on the merits. They are appeals against the interlocutory refusal of the chairman to grant an extension of time for serving a notice of appearance before the full hearing on the merits has taken place. In such cases it is incumbent upon the applicant for an extension of time to place all relevant documentary and other factual material before the industrial tribunal in order to explain (a) non-compliance with the Rules and (b) the basis on which it is sought to defend the case on the merits. Depending on the nature and circumstances of the case, that may be done by letter to the tribunal, or by affidavit verifying the factual position or at an oral hearing. The admission of fresh evidence on the hearing of an appeal against the refusal of an extension of time by the industrial tribunal is rarely necessary and is unjustifiable unless the strict requirements of Ladd v Marshall [1954] 1 WLR 1489 are satisfied: see Wileman v Manilec Engineering Ltd [1988] ICR 318."
We have read some of the correspondence exhibited to the affidavits but it paid little attention to the contents of the affidavits themselves. As an appeal to this Tribunal is only on a question of law, we find difficulty in understanding the basis on which the employers could properly file affidavit evidence on matters which could, and should, have been put before the Industrial Tribunal Chairman on the applications for extension of time. Reference was made to the decision of this Appeal Tribunal in Charlton v Charlton Thermosystems (Romsey) Ltd [1995] ICR 56 which sets out a procedure for affidavit evidence by an Appellant who has never entered a notice of appearance and is seeking to appeal against a substantive decision on the merits that reach adversely to him. In those cases the Appeal Tribunal laid down a procedure at page 60E to H so that the Tribunal could be satisfied that the Appellant against a substantive decision had a reasonably arguable defence on the merit, as well as a satisfactory explanation for his failure to enter a notice of appearance or to apply for an extension of time for entering a notice of appearance. If the Tribunal were not satisfied on those matters then the appeal would be dismissed at a Preliminary Hearing.
These cases are not, however, appeals against a substantive decision on the merits, they are appeals against the interlocutory refusal of the Chairman to grant an extension of time for serving a notice of appearance before the full hearing on the merits has taken place. In such cases, it is incumbent on the application for an extension of time to place all relevant documentary and other factual material before the Industrial Tribunal in order to explain (a) a non-compliance with the rules, and (b), the basis on which it is sought to defend the case on the merits. Depending on the nature and circumstances of the case that may be done by letter to the Tribunal or by affidavit verifying the factual position or at an oral hearing.
The admission of fresh evidence on the hearing of an appeal against the refusal of an extension of time by the Industrial Tribunal is rarely necessary and is unjustifiable unless the strict requirements of Ladd v Marshall [1954] 1 WLR 1489 are satisfied, see Wileman v Minilec Engineering Ltd [1988] ICR 318.
The Appeal