United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 323_93_1012

Appeal No. PA 323/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10th December 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(As in Chambers)

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MRS J EDWARDS          APPELLANT

SHORROCK GUARDS LIMITED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MRS J EDWARDS

(In Person)

For the Respondents MR A HANSCOMB

(Personnel Manager)


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the Registrar's decision to reject the application of Mrs Edwards to extend the time for appealing against decision of the Industrial Tribunal held at Reading last November 1992.

The background to the appeal is this: on the 25th April 1992 Mrs Edwards presented a complaint to the Industrial Tribunal against Shorrock Guards Limited claiming that an amount was owing to her by way of a bonus. In its Notice of Appearance, on the 27th May 1992, Shorrock Guards Ltd disputed liability to make a bonus payment and took the point that there should be a preliminary hearing before the Industrial Tribunal because it was two and a half years since Mrs Edwards had become aware of a possible claim, and so she was out of time for making her complaint.

The Industrial Tribunal heard the case on the 6th November. Mrs Edwards appeared "in person" and Shorrock Guards were represented by the Personnel Manager, Mr Hanscomb. The Tribunal unanimously decided that, although Mrs Edwards' claim under Section 5 of the Wages Act 1986 was not presented within the 3 month limit prescribed by Section 5(2) of that Act it was presented within a further reasonable period. The Tribunal, however, then proceeded to dismiss the complaint on the merits.

The decision was sent to the parties on the 24th November 1992. A note was typed on the front page of the decision that "the time for application for review and for appeal run from 24th November". On the 8th December, Mrs Edwards wrote to the Industrial Tribunal Office in Reading acknowledging receipt of the decision and said she wished to appeal and would appreciate guidance. She said in paragraph 2:

"I feel that my appeal against the decision may come under the `Review of Tribunal's Decision' or under the `Appeal against Tribunal Decision' category and perhaps you would advise me accordingly."

She made it clear that the interests of justice required a review because new evidence had become available which would have a direct bearing on the decision and would indicate that the information submitted to the Industrial Tribunal was, in fact, incorrect.

The Industrial Tribunal's office acknowledged receipt of that letter on the 15th December and said that the matter had been referred to the Chairman. The letter said:

"If you would let us know what new evidence has become available, we will then let you have a detailed answer to your letter."

There was later correspondence with the Industrial Tribunal Office. A letter was sent on the 25th January 1993 by the Assistant Secretary to Mrs Edwards. It said:

"Thank you for your letter of 8 January 1993"

(That letter was handwritten saying that some of the new evidence would be supplied by a third party and that as soon as all the information was to hand it would be forwarded.)

The letter of the 25th January 1993 went on to say:

"which has been referred to the Chairman of the Industrial Tribunals.

Whether or not the `new evidence which has become available' is in this office within 7 days, your application for a review will be considered, but you must appreciate that unless the new evidence is available he is unlikely to grant your request."

Mrs Edwards, who has appeared "in person" on this appeal, submitted that it was not clear to her, or her husband, on reading that letter that she had been put under a time limit to submit her new evidence within 7 days. She wrote further letters on 29th January and 19th February.

The new evidence was not submitted within 7 days or at all. On the 24th February a decision of the Chairman was sent out to Mrs Edwards stating that he refused her application for a review of the decision of the 24th November 1992. He gave as the reason for that decision that Mrs Edwards had failed, as directed, to give by the 1st February details of the basis of her application.

On the 13th April, that is 99 days after the time for appealing had expired against the decision notified on the 24th November, and 6 days after the 42 days had expired for appealing against the decision of the 24th February, refusing a review, Mrs Edwards presented a Notice of Appeal in the Employment Appeal Tribunal and asked for an extension of time. The Registrar refused that extension on the 15th June and on the 22nd June Mrs Edwards said she wished to appeal to the Judge against that refusal.

Mrs Edwards argues that the time for appealing should be extended, because she was not aware that the time limit for appealing would apply when she was pursuing a review of the original decision. She said that she did not know that she had to give a Notice of Appeal in those circumstances in the 42 day period. She was confused about the difference between a review and an appeal. She had sought guidance from the Industrial Tribunal, but had never received clear guidance on that point. She also explains that she was not clear that the letter sent by the Industrial Tribunal, on the 25th January, required her to submit her new evidence within 7 days. She says that the delays and non-compliance with the time limit were not her fault. She is not a lawyer. She has not been receiving professional advice. If an extension is not granted, an injustice will be done because she now has evidence to show that the original decision was not made on the correct factual basis.

The appeal against the Registrar's decision is opposed by Mr Hanscomb, on behalf of Shorrock Guards. He points out that Mrs Edwards has a long history of being out of time in relation to the claims that she has brought against his company. She was out of time in the initial complaint. She was out of time in seeking a review of the decision of the 24th November. She was out of time in appealing against the original decision and against the review. She was out of time in submitting evidence to the Industrial Tribunal in support of her application for a review.

In deciding how to deal with this appeal I have to bear in mind the well established procedures and principles of this Tribunal relating to time limits. These are most clearly set out in the case Duke v. Prospect Training Services Ltd [1988] ICR 521. The time limit of 42 days for appealing must be strictly observed. Extensions are only granted in rare and exceptional cases. The fact that the Respondent may not be prejudiced by a late Notice of Appeal is not relevant. What is relevant is the reason for the appeal being out of time. It is also relevant to take into account the length of the period by which an appeal is out of time. In this case the appeal against the decision of the 24th November is out of time by a very long period. Mrs Edwards has not been able to satisfy me that the delay which occurred in appealing against that decision is one which would lead me to extend the time. She was aware of the decision; she was dissatisfied with it; she realised or must have realised from the note on the decision that the time for appealing ran as soon as she received the decision. She did not get on with either appealing or pursuing the review for which the Chairman needed to see the new evidence. It is not a good enough reason for being out of time that the person is not legally represented, or may not been as au fait as a lawyer should be with the importance of complying with time limits. It is not a reason for being out of time that an unrepresented person may not fully appreciate the differences between reviews and notices of appeal. What Mrs Edwards should have done, and what I think any reasonable person would have done in her position, would have been to put in a Notice of Appeal well before this time limit had expired.

For those reasons the appeal against the Registrar's decision is dismissed.