Appeal No.	 EAT/483/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 July 2002

Before
HIS HONOUR JUDGE D M LEVY QC
MR D J HODGKINS CB
MR H SINGH

MISS J HALL	APPELLANT

ROUTE 73 KIDS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G MENZIES
(of Counsel)
Instructed By:
Messrs Pollecoff
Solicitors
41 Tabernacle Street
London EC2A 4AA	
For the Respondent	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE RESPONDENT	

JUDGE D M LEVY QC:

1	This is an appeal from a decision of a Tribunal sitting in Central London on 20 February 2001.  By an application dated 5 July 2000, the Appellant, Miss Janet Hall, sought a remedy at the Employment Tribunal for unfair dismissal, breach of WTR 1998 and unlawful deduction from wages.  She named as her employer Ms Karen Sharp and gave as address, Route 73 Kids, 86 Stoke Newington Church Street, London N16 0AP.  The Notice of Appearance dated 14 August 2000 gave the name of the Respondent as Route 73 Kids and gave the address, omitting the name which was put on the IT1, Ms Karen Sharp.

2	Either Ms Sharp or Route 73 Kids, it matters not because insofar as Route 73 Kids was a firm and Ms Karen Sharp was the principal of the firm (the person about whom the Appellant claimed was the partner or partners or the sole practitioner in the firm) made an application that the application had been commenced out of time and that the application was heard by a Tribunal sitting in Central London on 20 February 2001.  They dismissed the application on the grounds that the appeal had been received late and it could have been brought in time.  From that decision the Appellant appeals.

3	The fact that Summary Reasons only were given were considered by this Tribunal at the Preliminary Hearing, allowing this matter to come forward to a full hearing.  We are satisfied that we can deal with this appeal on the Summary Reasons, together with the material which is to be found in the review decision of the Tribunal below promulgated on 23 March 2001, in answer to a review commenced on 14 March 2001.  

4	Essentially, the facts were that the Solicitors acting for the Appellant had submitted a fax on 5 July 2000 to the Tribunal.  The Tribunal records did not show that as having been received.  The Tribunal, having found as a fact that the hard copy of the fax arrived out of time, held that it was not appropriate to extend time for putting in the application.  

5	It has since become apparent from the review decision that there was evidence that the fax had been sent to the Tribunal on 5 July.  The Solicitors had a record of the transmission of the fax.  That did not, on the review, appeal to the Tribunal as a reason to permit them to review their decision.  

6	However, we are hearing an appeal not against the review decision but against the decision that, in all the circumstances time should have been extended, and in that connection we take account of the fact that a fax was in fact sent on 5 July within the period as was contended below.

7	In our judgment, a Tribunal properly directing itself, knowing that although the books of the Tribunal had not shown the fax as sent, but learning that it in fact had been sent, should have come to a conclusion that it would be proper in the circumstances of the particular case to extend time.  As the Tribunal did not come to that conclusion, in our judgment it would be appropriate for us to substitute our decision for that of the Tribunal, that the proceedings were commenced in time.

8	In the circumstances, we make that substituted finding and send this matter back to the Tribunal for reconsideration of the matter on its merits.  

9	We gave leave to amend the Notice of Appeal this morning so that it become apparent that what was being appealed against was the decision made by the Tribunal on 20 February 2001 and not against the review decision.  

10	We have received a letter from Lake & Co, who are Solicitors for the Respondents.  They said that “We have written to the solicitors … indicating that the Respondent business is now defunct” and seeking to be removed from the solicitors on record.  We have been sent documents showing about the corporation of a company.  We are not sure whether Messrs Lake & Co were saying that they acted for the firm or the company, but however that may be the position is it is Route 73 Kids which was named as the employer of the Appellant and the proprietor of that firm is quite clearly the person who has to answer this application.

11	In the circumstances, we think it would be appropriate to direct that the Tribunal dealing with the Appellant’s complaint should be a Tribunal composed of members other than those who dealt with the decision which we are reversing.

12	Mr Gordon Menzies sought an order that the Respondent should pay the costs of this appeal on the grounds that there has been unreasonable behaviour.  We have referred in our judgment to a letter of Messrs Lake & Co, stating that Route 73 Kids is defunct.  We have been shown a search made by Messrs Pollecoff, Solicitors, who act for the Appellant, which shows us the following.  That a company, Route 73 Limited No.4173614, was incorporated on the 6 March 2001.  It was formerly Route 73 Kids Limited.  Its name was changed on 15 March 2001.  Ms Karen Wilson has been allotted 50 shares in the company.  We have given in the judgment earlier the date of the Originating Application and the date of the Tribunal’s decision which was promulgated on 2 March 2001.  The fact that a company was incorporated on 6 March 2001 clearly has nothing to do with the appeal which we have had to consider and, in our judgment, by seeking to rely on this those acting for the Respondent, who quite clearly was Ms Karen Wilson, is unreasonable.  There seems to be a deliberate attempt to prevent the Appellant having her day in court against the person, albeit a firm, who was her employer.  In the circumstances of this case it seems to us to be reasonable that a person, who has the benefit of public funding, should have costs occasioned by this appeal paid for by the Respondent.  We will, therefore, accordingly so order.  Those costs, of course, have to be taxed in the usual way.