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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ramanlal v. Sheth & Anor [2001] UKEAT 0556_01_2109 (21 September 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/0556_01_2109.html Cite as: [2001] UKEAT 556_1_2109, [2001] UKEAT 0556_01_2109

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APPEARANCES

 

For the Appellant	MR J WAITHE (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER LANGSTAFF QC

1. This is a Preliminary Hearing, in an appeal from an Employment Tribunal sitting at London South whose Extended Reasons were given on 1 March 2001. By those Reasons the Employment Tribunal dismissed a claim which the Appellant had brought alleging that he had not received itemised payslips, that he had suffered unlawful deductions from his wages and that he had been unfairly dismissed.
2. Part of the procedural history of the claim is that the originating application itself was dated 1 November 1999. The Respondent's notice from the first Respondent was dated 24 January 2000. The first Respondent was at that stage the only Respondent. Following an Interlocutory Hearing at which the Tribunal heard some evidence the Tribunal suggested that the second Respondent should be joined.
3. Her Notice of Appearance is dated 8 June 2000. There is no suggestion that that Notice of Appearance was in any sense out of time. The application in respect of unlawful deductions from wages related to the period of engagement of the Appellant with the second Respondent. The claim in respect of unfair dismissal appears to be a claim against the first Respondent. It emerges from the fact as found by the Employment Tribunal that it was in October 2000 that the Appellant said that he had been dismissed. At that stage he was no longer working for the Patels. He had been placed at another post office.
4. We have been faced with an application to grant leave based on a number of grounds developed extensively by Mr Ramanlal. However, he has had the advantage to be represented by Mr Waithe of Counsel under the ELAAS Scheme. He has also had the good sense to agree that Mr Waithe should put forward his appeal upon a limited number of bases. Mr Waithe advanced two grounds of his own. He has added two further grounds which the Appellant himself wanted to have argued.
5. The first of the two grounds which Mr Waithe himself advanced on behalf of the Appellant was that upon a strict reading of the rules there was no entitlement by the first Respondent to take any part in the proceedings as a Respondent nor had there been any application for an extension of time pursuant to Tribunal Rule 3(4) or (15).
6. He argues that the rule is mandatory in its terms. By Rule 3(2) of the Employment Tribunals Rules of Procedure 1993 "A Respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except" in respect of the various matters there set out." What Mr Waithe suggests is that this means that unless the Tribunal exercised a discretion, or unless it was to be implied from the circumstances that they had done so upon some basis upon which they were entitled to exercise that discretion, the first Respondent should not have been permitted to take part in the hearing save as a witness for the second Respondent.
7. We are reluctantly driven in the absence of clear authority shown to us bearing upon the issue (which we have requested but which has not been apparent) to think that there is here an issue which should be resolved at an inter partes hearing. We do so without enthusiasm and in particular would not wish Mr Ramanlal to have any great optimism that the conclusion of the Tribunal hearing the matter will necessarily be of any advantage to him. But we do think that the question arises as to whether in the absence of any obvious or obviously implied exercise of discretion the rules mean that the Respondent should not have taken the part that he did in the proceedings.
8. As to the second Respondent no such argument could arise. It follows that, unless one of the other grounds disclose an arguable ground of appeal, the appeal against the second Respondent must be dismissed. Mr Waithe's second ground is that no adequate reasons were given for the decision. He pointed out that in paragraphs 25 - 29 of the decision the Tribunal looked at and examined the credibility of each of the witnesses before them. It found each lacking. In such circumstances, said Mr Waithe, a principle analogous to that applied in Tchoula v Netto applies. Tchoula is unreported, (Appeal EAT/1378/96) a decision of this Tribunal in which the Honourable Mr Justice Morrison presiding gave general guidance suggesting it is not satisfactory that Tribunal decisions should contain a general statement to the effect that wherever the evidence of the Applicant was in conflict with that of the Respondent the Applicant's or Respondent's evidence was to be preferred and he gives reasons for that view.
9. We did not find this of particular assistance because in the present case the process was not one of expressing a general view as to the credibility of a witness as a means of reaching a conclusion upon the particular fact at issue. Indeed Mr Waithe was constrained to accept in the course of his submissions that that it was open to a Tribunal, and indeed was the only honest course for a Tribunal which so found, to conclude that it did not find any witness before it particularly convincing or credible. It nonetheless came to a conclusion upon reasoning which it set out. Here the Tribunal seems to us in paragraph 26 to set out reasons why it felt that it could not accept that which Mr Ramanlal was saying as to the non-payment of the money.
10. Of course the burden of proof was on him. If the Tribunal did not accept what he was saying that he would fail in his claim. Moreover it seems to us that the Tribunal has here given reasons why it preferred his account to the account of the Respondents even though all accounts were wanting. That disposes of the second ground and in fact Mr Waithe with commendable frankness himself did not push the second ground for very long.
11. The third basis for seeking to appeal was that a request had been made by the Appellant for witness orders. This request had been refused in a letter of 9 May 2000. The case elaborated in written submissions by the Appellant himself was that he had sought the attendance of a Mr Navin Patel. He considered that the attendance of this witness was vital and he had demanded that witness come by order of the Tribunal.
12. He had also asked for some other orders. The Chairman said in his letter of 9 May 2000 that he was not prepared to grant the application. However, he added significantly:

"If it appears at the hearing that the attendance of witnesses is necessary the case will be adjourned."

No application was made at the hearing for the attendance of any of the witnesses to whom the orders related. Accordingly, no advantage was taken of the opportunity held out in the letter of 9 May from the Chairman. Accordingly, this ground too has no substance.

13. Finally, the Appellant complained as a ground of appeal about the length of time that it had taken for the decision to be promulgated. The Tribunal concluded in its hearing on 24 July 2000. The Reasons were not promulgated until 1 March 2001. That is a very considerable delay. Delays are regrettable. It is often said that delays may defeat justice. However, delay in itself is not as we see it a potential and arguable ground of appeal in this case. The delay is not of such a wholly exceptional nature as to give rise to even an arguable case that the decision should be set aside. It follows that we are bound to dismiss the appeal in so far as it relates to the second Respondent and to dismiss the appeal against the first Respondent save only in respect of one matter namely the procedural and technical issue as to what rule 3 of the Employment Tribunal Rules 1993 properly required of this Tribunal, and whether that Tribunal properly dealt with its procedure in the light of that rule.
14. We direct that that issue should be heard in Category B, if possible because of the nature of the issue before one of the Resident judges of this Tribunal. That it should have no more than two hours allowed in which to be argued. This is assuming that some authority may be found which will be of assistance. Skeleton arguments identifying any case to be relied upon must be supplied no less than two weeks prior to the hearing. It may be that upon receipt of the skeleton arguments the length of time that the hearing will take will need to be revised. No further direction is necessary.