England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK)

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th October 2007

Lady Justice Smith:

1. This is a renewed application on behalf of Mrs Debra Woods, for permission to appeal the refusal of the EAT to extend the applicant's time for lodging a notice of appeal.
2. The applicant was employed by the respondent NHS Trust from 1976. For sixteen years she worked full time, but latterly her hours were reduced on account of her family responsibilities. In December 2002, she came off work due to ill health. Apart from two days in December 2003, she never returned to work. The medical reports obtained showed that she could not cope with any lifting and no work was found for her by the respondent which did not involve some lifting. In November 2004, she and her partner went to live in northern France. Soon afterwards, the respondent invited her to resign, but she did not. Thereafter, communication between the applicant and the respondent was infrequent.
3. The applicant was hoping to be granted early retirement on the grounds of ill health, and on 1 April 2005, the respondent assured her that her appeal against the refusal of early retirement, which they supported, would not be affected by her resignation. On 14 April 2005, the respondent wrote to the applicant to say that, if it had not heard from her by 30 April, it would assume that she had resigned. Nothing was heard from the applicant during that two weeks, and from 30 April the respondent treated the employment as having been terminated by resignation. However, on 5 May 2005, the applicant contacted the respondent to say that she had not resigned. The applicant then brought proceedings for unfair dismissal.
4. She filed her claim online, using an ET1 pro forma. Her claim, when printed out, covered three sheets of A4 paper. Later, she sought to amend her claim to include allegations of sex and disability discrimination.
5. At a hearing on the merits in December 2005, Mrs Moore, the ET chairman, held that the contract of employment had been frustrated by the applicant's actions in going to live in France. She held that the applicant had not been dismissed and that there was therefore no jurisdiction to hear her claim for unfair dismissal. Further, the proposed discrimination claims had been lodged well out of time, and there was no good reason to extend time to allow them to proceed. That decision was sent to the parties on 6 February 2006.
6. The applicant sought a review, which was refused, and she also wished to appeal. She had 42 days in which to lodge the appeal documents at the Employment Appeal Tribunal offices in London. The time for so doing ran out on 20 March 2006. On that day, the applicant's partner, Mr Stephen Young, who had come over from France to prepare the documents, sought to lodge the appeal in person at the office. However, he did not have with him all the documents required. Rule 3 of the Employment Appeal Tribunal Rules 1993 requires, inter alia, that a copy of the claim should be lodged with the Notice of Appeal. Mr Young had brought with him a copy of only one of the three sheets which comprised the ET1, not the whole document. Nothing was said to him at the time that he left these documents, as it appears that the person who attended to him did not have time to check through the documents in detail there and then. However, it was soon discovered that the ET1 was incomplete. The next day, a letter was sent to the applicant advising her that her Notice of Appeal could not be accepted.
7. On 28 March 2006, eight days out of time, a complete ET1 was lodged at the tribunal office. The office staff informed the applicant that she needed an extension of time. The registrar of the EAT considered the application for an extension on paper, but rejected it.
8. The applicant appealed to a judge of the EAT, as she was entitled to do. The appeal was a rehearing before HHJ Clark, at which the applicant appeared by her representative, her partner Mr Young. Mr Young argued that he had complied with the substance of the requirements of the rules. He had lodged the page of the ET1 on which all the important information was set out. It was not clear, he said, that a full copy of the ET1 was required. He and the applicant had relied on an advisory booklet entitled "The Judgment" which was issued by the Employment Tribunal. This said only that an appellant must send a copy of the claim and response with the Notice of Appeal.
9. HHJ Clark held that the rules clearly required that a complete copy of the claim should be lodged with the Notice of Appeal. He said that there could be no doubt that a full copy was required. That had been made plain by Burton J, the President of the EAT, in Kanapathar v London Borough of Harrow [2003] IRLR 571 and had also been touched upon in the President's Practice Statement dated 3 February 2005.
10. HHJ Clark then considered the applicant's explanation for the delay before exercising his discretion as to whether or not he should grant an extension. Mr Young explained that the applicant had delayed issuing her notice because she had been waiting for the outcome of her application for the review by the ET. The judge was not satisfied with that explanation, observing that the review decision was dated 22 February 2006. He accepted that it would have taken some days to reach the applicant in France, but even so, he considered that there was no justification for the applicant to leave the lodging of the notice until 20 March, the very last available day. The Judge referred to United Arab Emirates v Abdelghafar [1995] ICR 65 where Mummery J, as he then was, as President of the EAT, had made it clear that a party who left the lodging of a Notice of Appeal until the last day of the 42 day period available ran the risk that if there were to be a problem or hitch he might be out of time. HHJ Clark also referred to the decision of the Court of Appeal in Aziz v Bethnal Green City Challenge Company [2000] IRLR 111, approving the words of Mummery J in Abdelghafar, to the effect that an extension of time in the EAT is an indulgence, that there is no entitlement to an extension, and that an extension will only be granted in exceptional circumstances. Also, there had to be a full and frank explanation for the delay and the explanation had to provide a sufficient excuse. In the circumstances of this case, the judge concluded that he ought not to exercise his discretion to allow the extension of time.
11. The applicant then sought permission to appeal to this court. It should be stated at once that an appeal from the EAT to this court lies only on a point of law. Thus, only if it appears that the judge of the EAT may have erred in law will this court have jurisdiction to hear an appeal and only in those circumstances will it grant permission for an appeal. Laws LJ refused the application after consideration of the papers, saying that it could not be argued that the judge had erred in law. The application was renewed orally to Ward LJ, who was persuaded that the application might have some merit. He directed that the renewed application be heard before three Lords Justices on notice to the respondent, with the appeal to follow if permission granted.
12. The skeleton argument lodged in support of this renewed application focuses to a large extent on the applicant's dissatisfaction with the conduct of the case before the Employment Tribunal, and with the decision. These points are only of peripheral relevance to the present application and I will say no more about them at present.
13. Today, the oral application has concerned only two issues. The first was whether the EAT was right to reject the Notice of Appeal as filed on 20 March, on the ground that the rules had not been complied with. Mr Young, who has appeared again today, contended that the single sheet from the ET1, which set out the basis of the claim, was sufficient to satisfy the requirements of Rule 3(1)(B) of the EAT rules 1993, as amended, which provides as follows:

"In the case of an appeal from a judgment of an employment tribunal a copy of any claim and response in the proceedings before the employment tribunal or an explanation as to why either is not included should be served with the Notice of Appeal in order to properly institute the appeal".

14. Mr Young submitted that the rules do not make it plain that the whole of the ET1 or the whole of the claim must be attached. He pointed out that, until October 2005, it had not been compulsory to use an ET1 form for the submission of a claim to the ET. That is so, although, of course, in this case the applicant did use an ET1 form. In any event, the ET rules require that the claim, whether on an ET1 or not, must contain various items of information. Those various items of information are all required for the purposes of the EAT. The single sheet of paper which the applicant submitted with her Notice of Appeal did not contain all the information required by the EAT.
15. It is clear to me that HHJ Clark was right to hold that service of the whole of the document on which the claim is made is required by the rules, whether in the form of an ET1 or not. The notion that only a part of a document would suffice is most surprising to any judge who has ever sat on an appeal from or within the EAT. The appellate court or tribunal may well need the whole document. Mr Young suggested that the booklet issued by the ET entitled "The Judgment" is misleading. I do not think that it is. However, the possibility that the applicant might have been unreasonably misled by that booklet is a matter which could be taken into account in the exercise of discretion. In my judgment, the applicant cannot properly argue that the Notice of Appeal lodged on 20 March was complete in accordance with the rules. In my judgment, it plainly was not, and the EAT was right to reject the notice as being not properly instituted.
16. I turn therefore to the arguments on the exercise of discretion. First, I make it plain that on appeal to this court, which lies only on a point of law, the Court is not entitled to exercise its own discretion. The rules of the EAT afforded the judge, HHJ Clark, a discretion as to whether to grant the extension, and this court could only grant relief if we were satisfied that HHJ Clark's decision was wrong. In effect, the applicant has to show that the judge erred in the exercise of his discretion, either by taking account of irrelevant factors or failing to take account of a relevant factor, or by reaching an irrational decision.
17. The main points taken today by Mr Young were that the delay was not long, the error was understandable and no harm could be done by granting the extension of time. In short, the error was venial and should readily be excused.
18. It is true that the delay was not long. In the Court of Appeal, many Lords Justices would be prepared to overlook a delay of eight days where the delay was due to a genuine error and the appellant had made an attempt to file the document within time. However, we are not dealing with an application in this court; we are dealing with the Employment Appeal Tribunal. There, the time for lodging an appeal is 42 days from the promulgation of the ET's decision. That is a generous period of time. It is twice the length of time allowed for the lodging of an appeal to this court. It is because the EAT allows so generous a period for lodging the appeal that it takes a strict line about any delay beyond that period. The practice has developed in the EAT, over many years now, that an extension will not be granted unless the delay is fully explained and justified. That approach was, as HHJ Clark demonstrated, approved by the Court of Appeal in Aziz. It is not for this division of the court to say that that strict approach is wrong.
19. Mr Young sought to point to other cases in which the EAT appeared not to have adopted quite so strict an approach as it had in this case. The high point of this submission seems to be the case of Muschett v London Borough of Hounslow, where HHJ Burke QC gave a judgment dealing with the merits of the appellant's appeal. In the course of his judgment, the judge observed (very much in passing) that part of the ET1 did not appear to have been copied into his papers, but he said that nothing turned on that. He went on to make his decision. From that, Mr Young made the submission that sometimes an incomplete ET1 is accepted, and that some judges regard such a minor error as unimportant. Indeed, he reminded us that it was HHJ Clark himself who had dealt with Mr Muschett's case at an earlier stage and had apparently not taken any point about the incompleteness of the ET1. Well, that may be so, although it is not clear that an incomplete ET1 had been lodged with the Notice of Appeal in Muschett's case. It seems to me that it would not be surprising if, on occasion, the EAT office staff failed to spot that an ET1 was incomplete. Also, given that the judge's task in Muschett was to decide on the merits of the appeal, it is perhaps not surprising that the judge brushed aside the lack of the remaining pages of the ET1 as unimportant. He plainly felt that he had the necessary information for him to decide the case. But it does not follow from what apparently happened in Muschett that the EAT is not entitled to insist that full documentation is filed before the Notice of Appeal is accepted.
20. In my view, in the present case, HHJ Clark properly directed himself as to the relevant law. He was entitled to hold, as he did, that the circumstances of the applicant's failure were not in any way exceptional and that he should not exercise his discretion to grant the extension.
21. No one doubts the honesty of the explanations advanced by Mr Young on behalf of the applicant. Mr Young had not brought the whole ET1 to England with him because he thought that it was sufficient if he filed the second page which covered the nature of the claim. That was an error, but one can accept that it was a genuine one. He had left his attempt to file the papers until the last day, leaving no time to deal with any problems. He had delayed initially while awaiting the review decision. That was entirely reasonable. But the decision letter was issued on 27 February. Even if it took a week to reach France, there was still plenty of time available before time expired. There was no real explanation for Mr Young's or the applicant's decision to leave the attempt to lodge this Notice of Appeal to the very last day. He could quite easily have come earlier. Of course a litigant is entitled to rely on the whole period allowed by the rules, but if he or she does so, he or she takes the risk that there may some unforeseen problem or snag which will have the effect of putting her out of time. It seems to me that this case was by no means exceptional and the explanations for the failure did not wholly excuse it. I do not think it can possibly be argued that the judge was wrong in the exercise of his discretion.
22. There was a suggestion in the skeleton argument, not pursued in oral argument before us, that the strict approach adopted by the EAT amounts to a denial of the appellant's Article 6 rights of access to the court. In my judgment, Mr Young was right not to pursue that today, as the argument is without merit. Appellants have 42 days of unfettered access to the EAT for an appeal. There can be no breach of Article 6 caused by the strict application of the 42-day rule.
23. I have said very little about the merits of the underlying appeal. The skeleton argument makes many points about them. The applicant is dissatisfied with the findings of fact, and alleges that the chairman was biased. The first reason for alleging bias appears to be that the claim ought to have been struck out because delivery of the respondent's bundle of documents was delayed until very shortly before the hearing was due to begin and was in breach of the case management directions. The claim was not struck out and the hearing went on; the applicant did not seek an adjournment of the hearing. The second reason why it is said that the chairman was biased is that it is claimed that she based her decision upon forged documents. However, the chairman rejected the applicant's suggestion that forged documents had been put in by the respondent. She said that she was quite satisfied that the documents had not been forged.
24. The allegations of bias would normally be investigated by the EAT if an extension of time were granted. That has not happened. Accordingly, I cannot comment in detail upon them; I can say only that they do not appear to me to have much prospect of success. Further, the rest of the Notice of Appeal does not immediately appear to me to raise a point of law with any obvious merit. Accordingly, it does not seem to me that this is a case in which justice demands that the applicant should have an opportunity to present her appeal, notwithstanding her procedural failures.
25. For the reasons I have given, I would refuse this renewed application for permission. It does not appear to me that the proposed grounds against HHJ Clark's decision are in any way arguable.

Lady Justice Arden:

26. I agree with the judgment Smith LJ and with her reasons, and I too would dismiss the application and refuse permission to appeal.

Lord Justice Ward:

27. The denizens of the Employment Appeal Tribunal seem to me to be a hardhearted lot, and mercy flows thinly in the lifeblood of the rules and practice which govern their consideration of applications to extend time for appeal. But, more importantly for this afternoon, this court has approved that approach (see Aziz v Bethnal Green City Challenge Company Limited [2000] IRLR 111). Against that background, I have to ask myself: is there a real prospect of the applicant persuading this court that HHJ Peter Clark made an error so egregious as to fall outside the generous ambit within which there is reasonable room for disagreement? His first finding, in his decision of 26 September, in paragraph 3, is:

"It seems to me abundantly clear that the expression claim and ET1 are synonymous."

28. I confess it is not so abundantly clear to me, but I do not sit in that court, and my experience is vastly different. I noticed that rule 3(1) of the Employment Appeal Tribunal Rules 1993 provides that a Notice of Appeal has to be "in, or substantially in, accordance with Form 1…in the Schedule". Where this Notice of Appeal falls short is that it missed out the two pages of ET1; but if asked if the appeal notice is substantially in accordance with the form, then, given the not compellingly important information contained on the first and third pages, I might have come to a different conclusion. After all, what was missing was the details of the claimant, the details of the respondent, and in Section 3, answers to such questions as "Were you an employee of the respondent? Is it a claim about dismissal? Is it a claim about anything else? Have you complained in writing? Did you allow 28 days to pass?" and so forth; and the missing page 3 has "Section 9: Any Other Complaints", "Section 10: Any Other Information", and "Section 11: Your Representative". I would have thought that was information that could be picked up quite easily on the hearing of the appeal.
29. Secondly, Rule 3(1)(B) provides that in the case of an appeal from a judgment of an Employment Tribunal, a copy of any claim and response have to be included. It says claim, and not form ET1. Is there a difference? Well, if you read Schedule 1 to the rules, at paragraph 13, dealing with starting a claim, it provides in sub paragraph 3 that unless it is a claim in proceedings described in regulation 1(4)(3), a claim which is presented on or after 1 October must be presented on a claim form. So the rules themselves distinguish between claim and claim forms. But, as I say, those are arguments which the judge had to decide, and it has to be shown that he was plainly wrong about it. It cannot be so established.
30. Then there is the question of discretion. Here, as my Lady has already indicated, a litigant in person made a genuine mistake -- a mistake I would regard as venial, capable of being forgiven. Were it dependent on me, I would have extended the time, but that is not the law. The question is whether HHJ Clark was plainly wrong to have concluded otherwise, and for the reasons given by my Lady I cannot, hand on heart, say that there is a real prospect of that succeeding. When I look at the merits to see if this is a strong enough claim to overcome all of those difficulties, I am afraid Mr Young wholly failed to demonstrate that it is a claim of such strength as to allow mercy to inform the decision of the court. Hardheartedly, like everybody who has had to deal in this area, I too refuse the application and dismiss it.

Order: Application refused.