Appeal No.	 PA/58/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 June 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
AS IN CHAMBERS

METRO INNS LTD	APPELLANT

MRS A J ARMSTRONG	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER
Revised			

	APPEARANCES

For the Appellant	MR K S DAVIDSON
(Consultant)
Metro Inns Ltd
Mountsett
Burnopfield
Newcastle Upon Tyne
NE16 6BA	
For the Respondent	MR R F MONKS
(Counsel)
Messrs Swinburne Jackson & Partners
2 Edith Street
Consett
Co Durham
DH8 5DW	

MR JUSTICE LINDSAY (PRESIDENT)

1	This is an appeal by Metro Inns Ltd against the Registrars refusal to extend time for the lodging of a Notice of Appeal.  Mr Kevin Davidson has spoken on behalf of Metro Inns and Mr Monks has appeared for the Respondent, an erstwhile employee, Alison Jane Armstrong.

2	On 7 January 1999 Mrs Armstrong launched an IT1 claiming unfair dismissal and payment in lieu of notice.  She claimed that she had been employed from 1990 to 1998.  On 27 January 1999 there was an IT3 from Metro Inns claiming that that was not the case, that Mrs Armstrong had merely been probationary and over a very short period and had proved not to be up to standard.  

3	A Jurisdiction point was seen to have arisen; the papers do not disclose quite how it arose but that it was there was obvious because on the face of things Mrs Armstrong although employed for over 8 years or so had not been employed by Metro Inns beyond a very short time and not, therefore, long enough to be able to claim for unfair dismissal.

4	On 7 June 1999 there was a hearing before the Employment Tribunal of the preliminary issue of whether there was jurisdiction to take the case further.  The decision of the Tribunal was given on 1 July 1999 in extended reasons; they were promulgated in the ordinary way and sent to the parties on 1 July 1999.  The decision of that Tribunal was that Mrs Armstrong did have continuity of employment sufficient to be able to claim for unfair dismissal against Metro Inns.  They held that there had been a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations- “TUPE.”  

5	Accordingly the case went forward.  There was no appeal launched against the decision on the preliminary issue that had been sent to the parties on 1 July 1999.  Mr Davidson says today that it had not been realised that they could appeal at that stage but if that was the case it was a considerable oversight.

6	On 5 November 1999 there was a substantive hearing.  The decision was sent to the parties on 24 November 1999; it was held that Mrs Armstrong had indeed been unfairly dismissed and she was awarded £2,100.88.

7	On 20 December 1999 (to judge from the date written on a Notice of Appeal form signed by the Managing Director of Metro Inns) a Notice of Appeal was signed.  It was not received here at the Employment Appeal Tribunal until 10 January 2000.  That was five days late.  

8	On 13 January 2000 Metro were told that the Notice of Appeal was late and it was indicated that they would therefore have to apply for an extension of time.  On 18 January 2000 Metro Inns indicated that they had posted the Notice of Appeal on 22 December 1999.  In the ordinary way the Employment Appeal Tribunal then consulted the other side and on 8 February 2000 Mrs Armstrong’s solicitors resisted any extension of time.  On 20 February 2000 Metro Inns in a letter set out the timetable which they said had been the applicable timetable in the case and it is a notable feature of that that if Metro was, indeed, minded to pursue an appeal with any speed there is a gap between 26 November 1999 (when they claim to have received the decision against which they wish to appeal) and 14 December 1999, when for the first time they requested from the Employment Appeal Tribunal the forms which are necessary in order to set about an appeal.  

9	On 24 February 2000 the Registrar refused an extension of time and on 26 February Metro appealed against that refusal and, of course, it is that appeal which I am now hearing.

10	It is asserted that the Notice of Appeal was posted on 22 December, but that is not proven by any evidence; there is no affidavit on the point at all.  There is no affidavit indicating what is the ordinary practice of sending out the post in Metro, if there is a normal practice.  It is not even said in evidence that the Notice of Appeal was, indeed, ready and signed on 20 December and put out for posting.  On this crucial question of when the Notice of Appeal was actually posted there is nothing except a mere assertion.  I can quite see that it is difficult to prove actual posting but it is not that difficult to substantiate what a company’s ordinary practice in relation to its post is, in particular stating that the Notice of Appeal had, indeed, been signed on 20 December and put out for posting.  Even then there would be a need to explain, if it was signed with a view to being sent on 20 December, why it was not sent until 22 December, but there is no evidence whatsoever on that subject.  There is a suggestion in the papers that the envelope in which it was received by the Employment Appeal Tribunal was franked 7 January but that is not in evidence and I do not propose to pay attention to that.

11	That is one weakness in the Appellant’s position; another is that there is no explanation in evidence or indeed given orally today for the gap between 26 November and the date when the forms were first asked for.  So far as the merits of the appeal are concerned, the cases show that they are not to be given a very great weight saving in the most obvious of cases, but here the proposed Notice of Appeal seems to raise two points.  First and most emphatically raised is that there never was a TUPE transfer so as to give Mrs Armstrong continuity of employment.  That is not a point that can be raised on the appeal against the substantive decision of 24 November.  That was not even in issue on the hearing on 5 November and it is not dealt with in the decision of 24 November.  It was not in issue because it had been decided earlier, by the decision promulgated on 1 July.  If it had been intended to challenge the presence of a TUPE transfer then Metro should have appealed the decision promulgated on 1 July but that they did not do.  This first ground really is of no weight at all against the decision of 24 November.

12	The second ground is that the Tribunal, on the substantive hearing on 5 November 1999, wrongly received a wedge of papers from Mrs Armstrong or her advisers which were, they say, not only produced late but were in any event improper, even scurrilous, and that it was wrong that the Tribunal should have received them.  

The Tribunal themselves deals with this.  What they say in their paragraph six is: -

“The applicant gave oral evidence on her own behalf.  She called in evidence Mrs Lynn Meldrum (the applicant’s former employer, whose husband was tendered but not required by Mr Davidson), Mrs Janet Akers (a former colleague) and Mr Robert Steel (the applicant’s boyfriend).  The applicant and Mrs Meldrum read prepared statements which they amplified and on which they were cross-examined.  The applicant also adduced in evidence a number of documents A1 – A8, which included several statements and letters from persons who did not give oral evidence and also from Mr Steel.  These statements and letters (including those read by the applicant and Mrs Meldrum) contained various allegations which, on the face of matters, were prejudicial to the respondents but of no relevance to the issues in this case and thus of no probative value.  We wish to make it entirely clear that, in deliberating in this case, we had no regard whatsoever to any of these matters.  We also make it clear that, insofar as they raised issues which though relevant were in contention, we had no regard at all to any of the statements or letters apparently signed by any person who did not give oral evidence before us.  On behalf of the respondents, oral evidence was given by the third respondent.  He did not adduce any further evidence.  The second respondent was not present at the hearing: we are told, and entirely accepted, that she was too ill to attend.  However, we record the fact that no application was made for an adjournment of the matter.”

13	So far as concerns Metro Inns being taken by surprise by the documents, then the answer to that is that an adjournment application should have been made but was not.  In any event it is quite plain that no attention was paid to the lately-produced documents.  Although generally little attempt is made to weigh the merits of an appeal in an application such as this, here it can be seen that neither of the two points sought to be raised has, as it seems, any discernible prospect of success.  It does not look, in other words as if declining to extend time denies Metro any argument that has any real prospect of success.  Reverting to the Registrar’s conclusion that there should be no extension of time, an extension of time does need to have support from evidence and evidence which shows some exceptional circumstance, see the well known cases of Abdelghafar and, in the Court of Appeal, another case called Aziz –v- Bethnal Green, which are familiar cases in this corner of the law.  As I see it, no exceptional reason is here made out and, so far as the merits can be taken into account, they do nothing to assist the Applicant’s case.  

14	I am unable to see that the Registrar made any error in her decision of 24 February and exercising the discretion afresh, I do not extend time and hence accordingly must dismiss the appeal.

I now have before me an application for the costs of and incidental to this application.  Mr Monks on behalf of Mrs Armstrong draws my attention to r.34 of the Employment Appeal Tribunal rules, paragraph 1 of which reads as follows:

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 one can see that there are 2 stages.  First of all an applicant for an award under this paragraph has to show one or more of those matters- unnecessary, improper or vexatious proceedings  -unreasonable delay or other unreasonable conduct- and then, beyond that, it has to address whether the discretion indicated by the words ‘may order the party at fault’ should be exercised in the applicants favour.  

15.	Well, as I see, it these proceedings were not unnecessary in the sense that the only conceivable way in which the appeal could go forward would be if leave was given or if the decision of the Registrar was overturned, so that the proceedings were necessary in the sense that if the company, Metro Inns, wished to proceed, that was the only way it could do so.  It is not said that the proceedings were improper.  It is said that they are vexatious but there was no evidence whatsoever that Metro Inns had some collateral purpose or had acted deliberately with some malicious or other improper intent, or even that they had been advised that they would lose.  I do not see any ground for holding the application to have been vexatious.  It is said, and this really perhaps goes to “unnecessary” as well as “vexatious”, that there had been an indication that the notice of appeal had been put in an envelope franked 7 January, which itself was out of time and that had the company, Metro Inns, enquired into that, they might have found that the proceedings were doomed.  However, they were not told that there was going to be evidence of an envelope franked as at 7 January and I do not see that it can be right to blame them for not having counted upon something which was not, and was not known to be likely to be substantively advanced.  

16.	As for whether the Metro conduct has been unreasonable, it seems to me that although they have lost, they have not been unreasonable.  It should no doubt have appealed against the decision of 1 July but it cannot be said that they were unreasonable; they were merely, as it seems to me, ignorant.  To be wrong is not of itself to be unreasonable.  It is hinted that they have received legal advice and have pursued these proceedings notwithstanding that legal advice but there is no evidence to that effect and, indeed, had they had legal advice, the likelihood would have been they would have appealed the decision of 1 July and would have been advised to get on with an early appeal against the decision of November 1999.  

17.	Doing the best I can on the limited information I have, it seems to me that this is not a case where the underlying conditions required in r.34 (sub rule 1) are met and, even if they were, which I hold they are not, the question of the discretion would then arise and I think that I am entitled to have regard to the fact that this is a small company which has felt unable to lay out money in professional legal advice.  That has led to a penalty in a sense but it does not seem to me proper to visit a yet further penalty upon it in terms of an order for costs.  Accordingly I make no order as to costs.