Appeal No.	 EAT/757/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 October 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS R CHAPMAN
MR R SANDERSON OBE

CAMELLIAN MANUFACTURING LTD	APPELLANTS

MR J LEGGETT & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR D J COOKSEY
(Representative)	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to decide whether or not Camellian Manufacturing Ltd have an arguable point of law in an appeal which they wish to raise against a decision of an Industrial Tribunal which was sent to the parties on 17th December 1996. The Company were the respondent to five applications brought by five individuals claiming unpaid wages and matters of that kind. The Industrial Tribunal Chairman sitting alone concluded that the Camellian were liable to the five applicants in the sums specified in the decision of the tribunal which was accompanied by summary reasons.

	The background to this case may be summarised in this way. Initially the applicants made complaints against a Mr Cooksey, who is the Chief Executive of Camellian, and a company of which he is also Chief Executive, DiskPak Ltd. 

	By a letter which was received by the Industrial Tribunal on 3rd July 1996, on behalf of DiskPak Ltd, Mr Cooksey indicated that he received five applications; that he was running a very small business; that he was having to work extremely hard to keep it going; that he had copied the documents to his solicitors and was looking for them for reply; that it was their intention to verify the claims and then to pay them in full if verified; and that a copy was being sent to ACAS in the hope that the problems could be settled amicably.

	What then happened is that the case was listed for hearing. It came before a tribunal Chairman sitting alone, as he was entitled to, bearing in mind the nature of the claim, on 1st November 1996. He heard evidence in relation to the correct identity of the respondents. Of the five applicants, at least one of them had referred to Camellian Manufacturing (UK) Ltd as a potential respondent, and had given some circumstantial account of why Camellian were to be joined in the IT1. Accordingly, on 1st November the learned Chairman, having heard submissions from the applicants, (the respondent, Mr Cooksey and DiskPak not appearing) adjourned the hearing and ordered that Camellian should be joined in the proceedings as third respondents and that they be served with the IT1’s and the relevant IT2 form. That was duly done. There was some communication, as we understand it, between Mr Cooksey and the Industrial Tribunal, between that date and when the matter came on for hearing, on 28th November 1996.

	No formal Notice of Appearance was served on behalf of Camellian Ltd. Mr Cooksey did not appear. There was no representation on behalf of either DiskPak Ltd or Camellian on that occasion. Accordingly, the Industrial Tribunal heard the evidence from the applicants, and concluded, having heard all the evidence, that the correct respondent was Camellian Manufacturing (UK) Ltd, and that they were responsible for paying the various sums to the individuals. That decision was sent to the parties on 17th December 1996. 

	A Notice of Appeal was received by the Employment Appeal Tribunal on 5th February 1997. 42 days is provided for the hearing of an appeal. This period will only be extended in the circumstances set out in accordance with the principles laid down in United Arab Emirate v Abdelghafar [1995] ICR 65. The first requirement is that a full and honest explanation should be provided to the Employment Appeal Tribunal explaining why the appeal was lodged out of time. Furthermore, this is an appeal lodged on behalf of a company which had not entered a Notice of Appearance, and is an appeal against a decision of an Industrial Tribunal set out in summary form. It was plainly not a decision expressed in a way which the Employment Appeal Tribunal could sensibly review. Accordingly and subsequently, Mr Cooksey applied to the Industrial Tribunal for extended reasons. That application was well out of time. We have, therefore, here, a case where a company which did not participate before the Industrial Tribunal, wishes now to argue a point which was not argued before the Industrial Tribunal, namely that Camellian Ltd were not responsible because there was no transfer of an undertaking. 

	This is an appeal, which as I say, is out of time. In our judgment for the various reasons that I have referred to, it is simply not a credible position for the Company to seek to argue before us matters which are out of time, matters which have not been argued before, and, in our view, there is no reason to believe that the Industrial Tribunal exercised their discretion wrongly in refusing to give extended reasons. Indeed, in our judgment they were correct to do so having regard to the non-participation of Camellian in the litigation up to that date. Accordingly, there being no merit in this appeal, it will be dismissed.