Appeal No.	 EAT/783/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 October 1999

Before
HIS HONOUR JUDGE J HICKS QC
MR D CHADWICK
LORD GLADWIN OF CLEE CBE JP

STEIN & CO & OTHERS	APPELLANTS

MS A HATUKIA 	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MS C SPIRE
(of Counsel)
Messrs S Newman & Co
Solicitors
13 Park View Road
London N3 2JB	

	JUDGE J HICKS QC:	The Respondent to this appeal, Ms Hatukia, brought a complaint of unfair dismissal, the unfairness alleged being in two respects, first that she was dismissed because of pregnancy and, secondly, because she had raised health and safety matters.  She also applied for pay in lieu of notice and complained of the lack of a contract in writing or proper written notice of the terms of her contract.

1	The procedural history was complex and part of the complexity arose out of difficulties about the identity of the employer.  Two Respondents to the application were named, one Stein & Co, and the other a company called Tenbeigh Financial and Secretarial Services Ltd.  Yet a further name had been used, namely Tenbeigh Financial Services, but no entity under that name, as we understand it, became a party.  Stein & Co and Tenbeigh Financial and Secretarial Services Ltd, however, were made Respondents.  Stein & Co have never entered a Notice of Appearance.  Tenbeigh Financial and Secretarial Services Ltd did enter a Notice of Appearance, but as part of the procedural history were struck out for failure to comply with directions.

2	In that state of affairs the matter came before the Employment Tribunal on 31 July 1998, and the Tribunal first dealt with entitlement to appear and call evidence, declined to set aside the striking out of Tenbeigh Financial and Secretarial Services Ltd, were not apparently asked to extend the time for Stein & Co to enter a Notice of Appearance, and therefore concluded that neither of the Respondents had any standing to take part in the hearing and proceeded to deal with the substantive issues, of which the first was which of the Respondents was Ms Hatukia’s employer?  It was decided that it was Stein & Co and then the Tribunal proceeded to deal with the complaints and found in favour of Ms Hatukia that the principal reason for dismissal was pregnancy, which was an automatically unfair reason.  They also found in her favour that there was sex discrimination against her; that apparently also being one of her complaints, and they finally found that she was entitled to loss of wages and pay in lieu of notice and proceeded to assess the sums due.  They finally made an order for costs against the Respondents on the ground that they had behaved frivolously, vexatiously and unreasonably regarding the claim.

3	The Extended Reasons for that decision were promulgated on 22 September 1998.  There has been no appeal against that decision.  There has been no appeal against the striking out order made against Tenbeigh Financial and Secretarial Services Ltd.  There has been no application by Stein & Co for extension of time to enter a Notice of Appearance.  What there has been, and what is before us by way of appeal, is an application to the Employment Tribunal to review its decision.

4	Applications of that kind must be made within 14 days after receipt of the Extended Reasons and the time for that therefore expired early in October 1998.  The application for a review is dated 18 March 1999 and therefore some five months or more out of time.  It was dealt with by the Chairman in a decision promulgated on 28 April 1999 and he rejected it, first, because it was out of time, and it is quite plain (since there was in the letter of application what amounts, although not very explicitly, to an application to extend time). that by that decision he is not only noting that it is out of time but also refusing to extend time.

5	Secondly he rejected the application for a review on the ground that neither of the parties applying for it had any standing to do so, Stein & Co because they had never entered a Notice of Appearance and Tenbeigh Financial Services Ltd (as he describes them) - they had apparently by then changed their name to Camden Finances Ltd – because of the striking-out order.

6	The third reason he gives for refusing the application for a review is that the application had no reasonable prospect of success, and he sets out the grounds on which he reaches that view in a paragraph of 16 or 20 lines or so, not inordinately lengthy, but of some substance.  

7	The question before us is whether there is any arguable ground of appeal against that refusal of the application for a review sufficient to go to a full hearing, and in order to persuade us that there is such an arguable ground Ms Spire for the Appellants, as she recognises she has to, attacked each of those three reasons.

8	As to the refusal to extend time she tacitly accepts, as she must, that the delay was inordinate.  But she says that delay of itself is not a ground, however great, for refusing leave to extend.  We accept that that is so, but the first matter to be considered in addition to the mere length of the delay is the reasons for it and there is nothing, so far as we can see, in the letter of application, which is from a firm called Peter Gillis & Co, presumably Solicitors, to provide any reason or excuse for the delay.  

9	Secondly, on what might broadly be called the merits, that is the prejudice to one party if time is extended and to the other if it is not, and the prospects of success of the application itself, it is quite plain that the Chairman did take into account the prospects of success, because he dealt with them as a separate and independent reason for dismissing the application and it cannot possibly be supposed that, having formed a view about that, it was not also in his mind when considering whether to extend time.  As to prejudice, the prejudice to Ms Hatukia if time was extended and this matter after the long history of default by the employers was reopened was obvious; the prejudice to the Appellants if they were not allowed to proceed with the application for a review was equally obvious, and we find it fanciful to suppose that the Chairman did not have that in mind.  Those are the common elements of prejudice on each side and we see no special considerations which are not mentioned in his decision on this application and which needed to be taken into account.  Indeed the prejudicial aspects, so far as they affected the Appellants, were one of the few matters which actually were developed at some length in their letter of application and clearly were in the Chairman’s mind.  We therefore see no arguable prospect of upsetting his decision not to extend time for the application.

10	So far as the second ground is concerned, the lack of standing of the Appellants, what Ms Spire says on behalf of Tenbeigh is that one of the very decisions at the hearing on 31 July 1998 had been the refusal to set aside the striking out order and the consequent refusal to let them take part in the hearing, and that was part of the very matter which they were seeking to have reviewed and therefore they must have standing to make that application.  We accept that that is an arguable point and that if there had been no other grounds for the Chairman’s decision that would be a point which should go forward to a full hearing.

11	So far as Stein & Co were concerned, Ms Spire suggests that on the authority of Tull & Ors v Severin & Ors [1998] ICR 1037, the fact that Stein & Co were represented at the hearing on 31 July, albeit not separately from Tenbeigh, must, despite the fact that no such application was ever made, be treated as an implicit application for leave to extend the time for a Notice of Appearance.  It is true that in Tull & Ors v Severin & Ors, where the parties concerned were unrepresented, that was the view which this Appeal Tribunal took, but these were employers, they were represented and if Stein & Co chose not to apply for leave to enter a Notice of Appearance out of time at the hearing (and still do not do so in the application for a review) we see no error of law on the part of the Chairman in treating them as disentitled to make the application.

12	But the third reason for the Chairman’s decision was that there were no reasonable prospects of success.  On that point Ms Spire relies on the well known authority of Drakard v Wilton [1977] ICR 642 that where the Tribunal is minded to dismiss an application for a review on that ground the applicant should be given an opportunity of developing its submissions that there is a case on the merits which has some reasonable prospect of success.  However that was a decision reached, as is recorded, with reluctance and regret, and it is important that in addition to the ground given for allowing the appeal in that case the Tribunal stated very firmly, and it is well known, that applications should in future always set out grounds in sufficient detail for the Tribunal to take them into account.

13	That was simply not done here.  The letter of application, as I have already said, does deal to some extent with the procedural history.  It does, without giving reasons, ask for the review to be considered out of time.  It does ask for the opportunity of an oral hearing, but it gives no indication whatsoever what might be the prospects that such a review would lead to a different decision on the merits.  It is not, of course, for us ourselves to canvass the merits.  Suffice it to say that the history and facts as set out and found by the Tribunal in its decision provided ample material for the Chairman to reach the conclusion that he did and we see no error of law on his part in that respect.

14	For those reasons we consider that there is no arguable ground of appeal that should go forward to a full hearing.  As we have endeavoured to make plain, that is so notwithstanding the fact that there is one point which would be arguable, but it would be of absolutely no advantage to the Appellants to succeed on that if they must still fail on the other grounds independently given by the Chairman, as we have found they must.  The appeal is therefore dismissed.