England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay: President)

		Royal Courts of Justice Strand London WC2 Monday, 5th November 2001

Monday, 5th November 2001

1. LORD JUSTICE PETER GIBSON: Roger Griffin applies for permission to appeal from the decision of the EAT President, Lindsay J, on 8th May 2001 dismissing an appeal by Mr Griffin. Mr Griffin had appealed from the decision on 16th January 2001 of the EAT Registrar refusing to extend time for the presentation of a notice of appeal to the EAT. Mr Griffin by his appellant's notice also seeks to appeal against the decision of an employment tribunal sitting in Reading dismissing Mr Griffin's complaint that he had been unfairly selected for redundancy. But that appeal has never been heard by the EAT because the notice of appeal was out of time. This court's jurisdiction is limited to hearing appeals from the EAT. What Mr Griffin would have to do if he is to appeal the Tribunal's decision is to reverse the decision by the EAT refusing an extension of time and have the appeal heard by the EAT. The only question for me today is whether Mr Griffin has a real prospect of succeeding on an appeal from Lindsay J's order or whether there is some other compelling reason why the appeal should be heard.
2. The background to this case is as follows. Mr Griffin is a music teacher. He was employed by Buckinghamshire County Council to teach part-time for thirteen and a half hours per week. The Council's case was that over the years up to 1999 there had been a progressive reduction in demand from schools for the teaching of general musicianship in schools and that he was only teaching two hours per week in a music centre. The Council took the view that there was a redundancy situation. Out of a pool of seven teachers who were identified by the Council Mr Griffin was selected for redundancy by a redundancy panel. He appealed, but the appeal panel upheld the decision to make him redundant and his employment ended on 31st December 1999.
3. Mr Griffin, whilst still employed, on 14th October 1999 presented his originating application to the Tribunal. There was a three-day hearing in May 2000. On 5th May 2000 the Tribunal gave summary reasons for dismissing his complaint. Mr Griffin, as was his right, asked for extended reasons. They were provided on 8th June. In those reasons the Tribunal explained why it had found the dismissal to have been fair. Mr Griffin had seven days in which to seek a review of the Tribunal's decision and 42 days from the date when the extended reasons were promulgated in which to appeal to the EAT from the Tribunal's decision.
4. On 18th July 2000 Mr Griffin wrote a lengthy letter to the Tribunal, asking for it to reconsider its decision. In it he sets out in some detail why in his view the decision was flawed. He said that he would like to challenge that decision and he asked that certain matters which he had highlighted should be addressed in the Tribunal's reply.
5. The Tribunal is not empowered to receive notices of appeal to the EAT. By the EAT Rules it is quite plain that an appeal is brought by lodging the relevant appeal documents with the EAT. The Tribunal has jurisdiction to review its own decision, and it took Mr Griffin's letter to be a request for such a review. Of course a review by a Tribunal of its decision is on the limited grounds specified in the Employment Tribunal Rules.
6. On 4th August 2000 a review was refused on the ground that it was out of time. Thus the matters highlighted by Mr Griffin were not addressed. Mr Griffin on 1st September wrote to the Tribunal saying:

"Your letters ... state that my request for a review hearing was out of time...."

7. On 2nd November 2000 Mr Griffin wrote a letter to the EAT which it received on 6th November. In it he stated that he wished to register a complaint against the Tribunal, the Chairman of which had refused Mr Griffin's request that a rehearing of the Tribunal should be convened. He said:

"... as my original request was within the forty-two-day time limit, I would like a rehearing to investigate the Tribunal's flawed and confused judgement. It would appear that [the Tribunal Chairman] is not best placed to be the arbiter in this re-hearing."

8. Although that letter was not on the prescribed form for a notice of appeal, the EAT is accustomed to accepting informal indications of dissatisfaction with a tribunal decision as notices of appeal. It accepted that letter as Mr Griffin's notice of appeal. But 109 days had elapsed since the time for lodging a notice of appeal with the EAT had expired. On 21st November 2000 the EAT wrote to Mr Griffin pointing out that fact. After further correspondence, the Registrar made the order refusing to extend time. That was followed by the unsuccessful appeal to Lindsay J.
9. Mr Griffin has throughout appeared in person. He has lodged an appellant's notice and a skeleton argument, most of which is devoted to why he is dissatisfied with the decision of the Tribunal. All that he says in those documents about Lindsay J's decision is that his (Mr Griffin's) appeal against the Tribunal decision was sent to the Tribunal in Reading well within the 42-day limit prescribed for appeals but it was out of time by the time it reached the EAT and that he had asked the EAT to waive the Registrar's decision because the Tribunal's decision was flawed. He said:

"The EAT preferred to stick to strict rules on time limits regardless of the unsafe basis of my contrived redundancy."

10. He ended his grounds of appeal by asking this court to consider the evidence in his skeleton argument and to determine whether or not his dismissal by reason of redundancy was fair or contrived. That last request is, for the reasons I have given, an impossible one in the absence of a decision by the EAT on a valid appeal to it and of a consequent valid appeal or application for permission to appeal to this court.
11. Mr Griffin has added to his written submissions by his oral submissions today. He has addressed me with courtesy and clarity. When I pointed out to him the difficulty in the way of examining in detail the question whether the Tribunal's decision on the merits was, as he claims, flawed, he advanced some further arguments relating to the time limit. He reiterated that his letter of 18th July was well within time and he submitted that that was an indication that he wished to appeal. He pointed out that he had requested the extended reasons and that it was unnecessary for such reasons to be given before an application for a review of the Tribunal's decision could be made. He submitted that his appeal was simply sent to the wrong address. He also argued strongly that time limits should not be allowed to prevent the EAT and this court from considering the merits of his case and the flaws in the Tribunal's decision. He made reference to the passage of time in the cased of Jeffrey Archer and said that, if so much time was allowed in that case, his short delay should not be held against him in the present case. It is clear that he feels strongly about children's education and he is gravely dissatisfied with what has happened to him. I do not for one moment doubt Mr Griffin's sincerity, but, as I pointed out to him, the question of delay in lodging notices of appeal is already the subject of several decisions.
12. It is inappropriate to go into the merits of a case in any detail on an appeal such as Lindsay J was hearing relating to an extension of time save in the rare case where the merits can plainly be seen to be virtually unanswerable. This is not such a case. It has to be borne in mind that in this court it has been held that in industrial cases a far stricter approach to delay and extensions of time is justified: see Aziz v Bethnal Green City Challenge Company [2000] IRLR 111. This court noted with approval the guidelines laid down by the EAT in United Arab Emirates v Abdelghafar [1995] ICR 65. Mummery J giving the judgment of the EAT gave guidance on the principles which govern the exercise by the EAT of its discretion to extend time. That judge pointed out that an extension may be refused in relation to an appeal even though the default in observing the time limit has not caused prejudice and is very short. An extension of time he described as an indulgence requested by a party in default who is not entitled to an extension and has no reasonable or legitimate expectation of receiving one. He said:

"The limit will, therefore, only be relaxed in rare and exceptional cases where the appeal tribunal is satisfied that there is a reason which justifies departure from the time limit laid down in the Rules."

13. He said that the EAT would look at the length of the delay even though a very short delay might suffice to justify the refusal of an extension. That was the case in Duke v Prospect Training Services Ltd [1989] IRLR 196. In that case the delay was of only one day and the would-be appellant had lodged his appeal with the tribunal instead of with the EAT. That case was referred to, with approval by this court, in the Aziz case.
14. In the present case the delay was considerable - 109 days - and in my judgment the EAT, for the reasons which it gave, was fully entitled to take the view that there were no grounds for granting the exceptional relief of extending time.
15. I do not overlook the fact that Mr Griffin indicated his dissatisfaction with the Tribunal's decision in his original letter of 18th July 2000. He has sought to cast doubt on the good faith of the Chairman of the Tribunal in not passing that letter on to the EAT and in treating it as an application for a review. I am afraid I cannot accept that that criticism is justified, having regard to the limited jurisdiction of the Tribunal and to Mr Griffin's plain request that the Tribunal should reconsider its decision for the reasons which he gave. As Lindsay J pointed out, there is no duty on the Tribunal to make good the procedural defects of an appellant. An appellant is expected to know what the rules provide and can easily find out what they provide in relation to an appeal by asking either the Tribunal or the EAT.
16. The fact is that Mr Griffin unfortunately did not observe the EAT Rules. His letter, treated as a notice of appeal, was plainly far too late. There is in my judgment therefore no real prospect of success on an appeal. No other compelling reason has been shown why this appeal should be allowed to go ahead.
17. Accordingly I must refuse this application.
Order: Application refused.