Appeal No. EAT/1079/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20 April 1994

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MR J D DALY

	MR J H GALBRAITH CB

HOLDTITE ADHESIVES LIMITED	APPELLANTS

MRS M CAMERON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR W J DIAMOND
(CONSULTANT)
Peninsula Business 
  Services Ltd
Stamford House
361/365 Chapel Street
Manchester M3 5JY

	

	JUDGE PEPPITT QC:	This is the preliminary hearing of an appeal by employers against a decision of the Middlesbrough Industrial Tribunal made on the 21 July 1993.  The unanimous decision of the Tribunal was that the Applicant, Mrs Margaret Cameron, had been unfairly dismissed.  She was awarded compensation of nearly £8,000.  The Appellants, who are represented before us today by Mr Diamond, did not enter an appearance to the complaint and appeared at the hearing only by dint of the courtesy of the Chairman, who on the morning of the hearing caused his clerk to telephone the Appellants and inform them that the complaint was to be heard that day.  In the event, Mr Groves the Company Secretary, attended in circumstances described by the Tribunal in paragraph 1 of its decision.  I quote:

		"....... Mr Groves the Company Secretary has been present in the Tribunal but he understands that as the company had not entered an Appearance, then he is only here as a member of the public, as it were, to hear what goes on but is not allowed to make any contribution to this application at all".

	Mr Diamond attacks the decision for error of law based upon that paragraph.  He refers us to Rule 3 of the Industrial Tribunals (Rules of Procedure) Regulations of 1985 Schedule 1 and points to sub-Rule 1 of Rule 3 which deals with the requirement that a Respondent shall within fourteen days of receiving the copy originating application enter an appearance in the proceedings.  He then refers to sub-Rule 2 of Rule 3; a respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except - (i) to apply under Rule 13(1) for an extension of the time appointed by this Rule for entering an appearance (ii) to make an application under Rule 4(1)(i), which does not apply.  

	Mr Diamond submits that the effect of what went on at the beginning of the Tribunal hearing was to cause Mr Groves to believe that he had no rights on behalf of the Appellants' to make any contribution to the proceedings.  Whereas in fact, says Mr Diamond, he had the right to apply, even at that late stage under Rule 13(1) for an extension of time for the entry of an appearance.  

	We would be reluctant to hold that a hearing such as this had been invalidated as a result of what was no more than a courteous gesture on the Chairman's behalf.  But if we thought there was any merit in the appeal we should do so without hesitation, notwithstanding that no appearance had been entered at that stage.  We have come to the conclusion however that in order for us to entertain Mr Diamond's submission and to refer the matter back to the Tribunal for re-hearing, or at any rate to permit him a full appeal on that aspect, we must satisfy ourselves firstly that there is a scintilla of a defence to the claim and secondly, that there is some prospect that an application under Rule 13(1) for leave to extend time for the entry of an appearance would succeed.  We say that because we must bear in mind the position of the Applicant, who has a finding in her favour from as long ago as July 1993 and any further delay would keep her out of money and to allow this appeal to proceed to a full hearing would, or might, land her in additional costs.  

	We asked Mr Diamond to summarise what answer his clients would have to the complaint.  He answered that the employers' defence to the claim would have been that Mrs Cameron had been made redundant.  We do not find that easy because that was indeed Mrs Cameron's assertion in a letter which she wrote to the Appellants' and that letter received a reply from Mr L A Huck, a Director of the Appellants', which contained this sentence:

		"Dear Margaret,

		Your letters have been passed to me and I have looked at the situation in some depth.  I reply on behalf of the company without prejudice.

		(a)	Your employment was terminated, you were not made redundant".

	Mr Diamond, who was not acting for the Appellants at that stage, candidly told us that the letter was written in an attempt by Mr Huck on the Appellants behalf to evade the responsibility which the Appellants' would otherwise have had to pay Mrs Cameron the sums which would fall due to her in the event of a redundancy.  It would be difficult to imagine any conduct less worthy of sympathy on behalf of the Respondent and less likely to evoke the sympathy of an appeal Tribunal in the circumstances in which the Appellants' now find themselves.

	So far as the failure to enter an appearance is concerned the situation quite shortly is this.  The originating summons was served on the 30 April of 1993.  On the 12 May of that year immediately before the expiry of the initial fourteen day period, Mr Groves the Appellants' Company Secretary, wrote to the Tribunal asking for a seven day extension so that legal advice could be taken.  The result was the grant of an extension of time until the 25 May.  There followed a further letter to the Tribunal from the Appellants' asking for a second and further extension.  That letter stated:

		"Due to major changes going on in our Company I have been unable to devote any time to entering a Notice of Appearance in this case.

		I would therefore be most grateful if you would grant me another seven days in which to do this".

	That second request resulted in the grant of a further extension of time to June 1.  Nothing emanated from the Respondents, so on the 9 June the case was referred to the Chairman who directed that the matter be listed for hearing, appearance not having been entered.  The case was not heard until the 21 July, some seven weeks from the date of the expiry of the final extension, during which time the Respondents did nothing whatever to advance their defence to the claim, or to appear to it.  

	In those circumstances we have come to the conclusion that this appeal should be dismissed at this stage.  We are not satisfied that these employers have any bona fide defence to the claim, nor are we satisfied that there are reasonable grounds for their applying for leave to enter an appearance out of time.  In those circumstances we think it would be vain to allow this matter to proceed further and unfair to the Respondent, Mrs Cameron, who would be prejudiced by any further delay both in being kept out of her money and perhaps in the need to incur further costs in resisting the full appeal.  We do not think that the circumstances of this case justify our taking such a course.