Appeal No.	 EAT/309/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 February 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MR L D COWAN
LORD GLADWIN OF CLEE CBE JP

COMPUTER INSIGHT LTD	APPELLANTS

MR E SHOKUNBI	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR G KELLY
(Managing Director)
Computer Insight Ltd
159 High Street
Penge
London
SE20 7EN

	MR JUSTICE CHARLES:		The parties to this appeal are a Company called Computer Insight Ltd, who are the appellants, and a Mr Shokunbi, who was an employee of that company. 

	The matter came before this Tribunal on an earlier preliminary hearing on 22nd April 1998 when a judgment was given by His Honour Judge Peter Clark, which sets out the history. We do not propose to repeat that history. Following that hearing, the Company as it was indicated in that judgment it should do, sought to appeal the “second review decision” out of time. That application came before the Registrar and was refused on 29th June 1998. 

	That therefore leaves before us the appeal against the original hearing before the Industrial Tribunal which took place on 19th August 1997. It was heard before the Tribunal at London (South), the Company did not appear and it has subsequently been found that the Company was not notified of that hearing.

	Attached to the original IT3 was a letter dated 24th February 1997. The box in paragraph 4 of the original IT3 which asks the question “was the applicant dismissed?” is ticked in box NO. When one reads the letter of 24th February and has minimal knowledge of the background, it is apparent that a reason why that was so was that it was then being alleged that there was TUPE transfer and that the respondent employee transferred and became an employee of the transferee. It was held (as the judgment of His Honour Judge Peter Clark shows) that there was not a TUPE transfer. 

	In the hearing that took place in August 1997 the reasoning of the Tribunal is set out in extended reasons dated 9th September 1997. In the grounds of appeal the Company seeks to argue that the conclusion the Tribunal reached namely that there was no potentially fair reason for the dismissal is perverse having regard to the contents of the letter dated 24th February 1997. In our judgment that is a point that is reasonably arguable. 

	Other points were raised today before us by Mr Kelly, on behalf of the Company, that the Tribunal erred in reaching other findings. We express no concluded view as to those points because it is unclear to us what documents were before the Tribunal at the August 1997 hearing but, in our judgment, all five of the listed grounds of appeal should be allowed to continue.

	Further, we will give leave to add to those grounds of appeal an additional ground that the Tribunal erred in law in proceeding with the case in the absence of the Company having regard to (a) the contents of the letter of 24th February which arguably raised issues as to the Company’s defence, and (b) the fact, as we understand it, although this has not yet been established, that attempts were not made to telephone the Company on the day to find out why they were not there. 

	A problem we are faced with is that that hearing in August 1997 was ultimately the subject of a review hearing which took place in January 1998. The existence of that review hearing might, and we say might, give rise to procedural difficulties on the basis that it is now that hearing which has to be appealed because following it the events that took place in August 1997 are water under the bridge. It seems to us, therefore, that it is appropriate for us to give leave to the Company to appeal out of time against the refusal of the Registrar to extend the Company’s time for appealing against the decision made on the review hearing in January 1998 and we give that leave.

	As to that appeal, we direct that the Company should put in an affidavit identifying the chronology leading up to and following the second review hearing in January 1998 and dealing with all matters that they wish the Tribunal to take into account in exercising their discretion as to whether or not an extension of time should be granted; and, if that extension of time is granted that leave should be given to amend the IT3. That statement should deal with the matters covered in the decision of this Tribunal in a case called Selkent Bus Co Ltd v Moore [1996] IRLR 661. It will have to cover the reasons why the Company did not appeal the review hearing in time; the reasons why the Company did not seek leave to appeal that decision out of time more quickly following the hearing on 22nd April 1998 at which His Honour Judge Peter Clark gave his judgment; and the reasons why an appeal was not made earlier against the refusal by the Registrar to extend time. It will also have to deal with the matters that the Company wish the Tribunal to take into account in exercising its judicial discretion to extend time and, if it does, to grant an amendment, which relate to the respective prejudice and injustice suffered by the parties. In short, it needs to give a chronological and so far as possible succinct account of the history and the reasons why the Company assert that even at this late stage it would be unfair to refuse an extension of time and grant an amendment. We direct that that affidavit should be filed within 28 days from today’s date. We also direct that the respondent, if so advised, shall answer that affidavit within 28 days of the date upon which it is served on him.

	We further direct that there should be a directions hearing in this matter and indicate that that directions hearing should come before either myself, if I am here, or His Honour Judge Peter Clark. The purpose of that directions hearing is to ensure, so far as possible, that everything will be in proper order for the hearing of the matters by the full Tribunal and to estimate the time and category of the appeals.

	We direct that the Company is to attend that hearing. The respondent, Mr Shokunbi does not have to attend that hearing and whether or not he attends is a matter for him. 

	So on that basis the existing appeal proceeds and having given leave to appeal out of time against the Registrar’s Order, that appeal is to be lodged within fourteen days of today. We make it clear that Mr Shokunbi can make such application as he sees fit to set aside the Order extending time to lodge that appeal and the Order giving leave to add an additional ground to the existing appeal, which means that on any directions hearing or a substantive hearing all points are open as to whether or not that was correct.

	We would like to make it clear that the directions hearing is to cover both the existing appeal and the application to extend time to appeal against the second review hearing and, therefore, if that leave is granted that appeal as well.