Gala Tent Ltd v Chambers & Anor

LORD JUSTICE RYDER: The appellant, Gala Tent Limited, is a small, family-run business which sells tents and related equipment. The respondent was employed in the customer services department of the company from 23 April 2012 until 20 September 2012 when she was dismissed essentially on the grounds of redundancy. She brought proceedings for unfair dismissal, discrimination and harassment against her former employer on the basis that the real reason for her dismissal was her pregnancy. In a judgment dated 10 October 2013, Judge Little accepted her claims that the employers' principal reason for dismissal was related to her pregnancy; that she was unfairly dismissed; and that she was subjected to sex discrimination. Her harassment claim succeeded in part.

The appellant appealed the decision but the proceedings were not instituted within time, due, it was said, to an error of a member of staff who did not pay the correct amount of postage when sending the forms to the Tribunal by guaranteed delivery post. The Employment Tribunal Registrar refused to extend the time for filing the appeal. That refusal was appealed, and in a decision of the Employment Appeal Tribunal made by His Honour Judge Peter Clarke on 2 July 2014 the appeal against the Registrar's refusal was itself refused.

I say straight away that the judge considered the relevant test for the extension of time in United Arab Emirates v Abdelghafar [1995] ICR 65 and Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111. He refused to extend time to appeal on the basis that (i) the excuse for instituting the late appeal was, although honest, not good enough to justify the exceptional course of extending time, and (ii) there was no arguable point of law.

The appellant had also sought to appeal the decision of Employment Judge Little which, among other things, refused the appellant's application for postponement and reconsideration of liability. The Court of Appeal only has jurisdiction to hear an appeal from the EAT, not the ET. This permission to appeal application therefore proceeds on that basis. In so far as the appellant seeks an extension of time from this court, I grant it.

The grounds of appeal and the skeleton argument are directed principally to the decisions of Employment Judge Little dated 17 January 2014 and 10 October 2013. It is the submissions made by the two members of Gala Tent Limited who appear before the court this afternoon that are critical. In their submissions they do not seek to raise points of law or indeed to suggest that His Honour Judge Peter Clarke made an error of law: they seek to argue that there is a compelling reason to grant permission to appeal.

They are able to demonstrate that there is in existence an invoice from the Royal Mail which has upon its face the relevant entry for payment of £5.79 on 15 November 2013 for the guaranteed delivery of a postal item. They say by reference to a photocopy of the appeal documents sent to the Employment Appeal Tribunal that this item is the appeal documents that were intended to be considered by the Employment Appeal Tribunal within time. Those documents were returned to sender on 5 or 6 December 2013 and received by them on 16 December 2013.

What they tell the court this afternoon contradicts the case that was put to Judge Clarke in the EAT. As can be seen from paragraphs 5 and 8 of his judgment, he was under the impression that the reason why the Post Office did not deliver the package was because a member of staff had failed to put on the package the required postage. That understanding came from a witness statement or skeleton argument that was before Judge Clarke, dated 19 June 2014, from a Ms Michaela Stafford. This court has a copy of that document and the paragraphs that are relevant are on page 66 of the appeal court's bundle. In fact, that understanding is said to be wrong because the appellant tells this court that the Royal Mail does not require postage to be affixed to a guaranteed delivery package; the relevant posting instruction was affixed to the package with its barcode, payment was received on the due date; and, accordingly, whatever thereafter happened would have been the fault of the Royal Mail, not Gala Tent Limited.

If all of this is correct, there is at least an argument that the understanding upon which Judge Clarke made his decision was fundamentally flawed and there would be a real prospect of success in having that reconsidered by the full court. In order to get to that position, the appellants need this court's permission to adduce additional evidence which is evidence they were not aware of at the time that the statement was provided to Judge Clarke or when his decision was made.

I am going to direct the appellants to produce that evidence by way of a witness statement for this court and I am going to adjourn this permission application to the full court who will also hear the question of whether that additional evidence should be adduced, i.e. whether permission should be given for it to be adduced when it has been presented to this court. The stay will continue in place, and I direct that the matter be listed before two judges of this court for 1 1/2 hours for a permission application with the application for permission to adduce additional evidence inter partes, with the appeal to follow on if permission is granted.

The appellants have been advised to take steps to ascertain whether in accordance with the rules of procedure that apply in the Employment Appeal Tribunal they can more conveniently than by pursuing this appeal apply to the judge to set aside his refusal to extend time on the basis of fresh evidence. If they are successful in that endeavour they must notify the Court of Appeal Office to withdraw this appeal.