Appeal No.	 EAT/517/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 12 September 2001

Before
MISS RECORDER ELIZABETH SLADE QC
MR P R A JACQUES CBE
MR J C SHRIGLEY

ELIZABETH DUFF TRAVEL LTD	APPELLANT

MR S B BRAY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M WEST
(Representative)
Peninsula Business Services
Riverside
New Bailey Street
Manchester 
M3 5PB	

MISS RECORDER ELIZABETH SLADE QC:

1	This is an appeal by Elizabeth Duff Travel Ltd against the decision of an Employment Tribunal which refused to allow its application to extend time for the filing of a Notice of Appearance.

2	One principal point arises on this appeal, namely whether the Tribunal applied the wrong test in deciding not to extend time for filing the Notice of Appearance.

3	Mr West, in an admirably succinct submission to us and in the Notice of Appeal, draws attention to paragraph 7 of the Tribunal’s Reasons in which the Tribunal states the test which it applies to the question of extension of time.  He then draws attention, quite rightly, to Regulation 3(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 and draws attention to the fact that in accordance with the Regulation the question of ‘reasonable practicability’ only arises once a Chairman has granted an application under Rule 15 for an extension of time.  He submits that phrase is relevant to the question of a costs award but is not the test to be applied in determining whether to extend time.  He also draws our attention to an unreported judgment in the Employment Appeal Tribunal under the presidency of the then Mr Justice Browne-Wilkinson in Horsfield v Roberts (EAT/240/81 21 October 1981) in which the learned judge drew attention to the different test which is applied for determining whether an unfair dismissal application presented in time, namely the reasonable practicability test and the test to be applied in other cases in which there is a jurisdiction to extend time.  In particular he draws attention to page 3 A to C of the transcript.  Suffice it to say that in our judgment these arguments plainly raise an arguable point of law that the Tribunal applied the wrong test in exercising their discretion to extend time to validate the Notice of Appearance in this case.

4	Mr West presses a subsidiary argument, namely that this Employment Tribunal failed to give adequate reasons for its decision.  He presses that point to guard against the possibility that the Respondent to this appeal may say that the correct test was, in fact, applied and that one should construe the decision of the Tribunal to that effect.

5	Whilst in our view this decision does not suffer from that defect, nonetheless the ground of appeal is a very subsidiary ground and we do give permission for that to go forward as well, as plainly this matter will proceed to a full hearing.