United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR J SMOUHA (of Counsel) Messrs Simmons & Simmons Solicitors 14 Dominion Street London EC2M 2RJ
For the Respondents For the Second Respondent	MR A SNELSON (of Counsel) Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH APPEARING IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): Almost every week the Employment Appeal Tribunal receives Notices of Appeal which are out of time. The appellant who wishes to pursue the appeal must make an application to the Registrar for an extension of time. Those applications are usually, and understandably, opposed by the party who was successful in the Industrial Tribunal. There is an appeal from the Registrar's decision to a judge. He may either sit alone in Chambers or refer the matter to a full Tribunal. Most decisions are taken to a contested appeal.

1. The consequence of failing to serve a Notice of Appeal within the ample six-week period allowed by the Rules is that, if an extension of time is granted, the hearing of the substantive appeal has been delayed and, in any case, time, energy and money have been spent by the parties, their advisers and this Tribunal in dealing with applications and appeals which would be unnecessary if the time limits were observed.
2. This case, with its combination of commonplace and unusual features, provides the Tribunal with a convenient opportunity to review the relevant principles and current practice for dealing with applications for extension of time. The case has been fully argued on both sides in Chambers. The judgment is handed down in open Court because of the points of general interest covered in it.

The Facts

3. There is no significant dispute about the relevant facts on this appeal:-

(1) In July 1992 Dr Abbas and Mr Abdelghafar presented applications to the Industrial Tribunal. Their complaints of unfair dismissal, redundancy payment and equal pay were made against their employer named in the application as "United Arab Emirates Embassy Medical Department, 71 Harley Street, London W1".

(2) A Notice of Appearance dated 7 December 1992 contested the claims on the grounds of "reduction of staff, dereliction of duty, incompetence, misconduct." The name and address of the Respondent was given as

"The Medical Department, Embassy of the United Arab Emirates, 30 Princes Gate, London SW7 1PT".

The representative acting for the United Arab Emirates ("UAE") was named as Prof. Mazzawi LLM PhD c/o Embassy of the United Arab Emirates." The Princes Gate address was given.

(3) The Notice of Appearance set out the grounds on which the claims were contested by UAE, including the following:

"The respondent reserves its rights under the State Immunity Act 1978, in particular sections 1 and 4 thereof … The respondent hereby objects to the jurisdiction of the Tribunal to deal with this matter unless and until sufficient evidence is adduced and the respondent has been given the full opportunity to make representations thereon – to bring this matter within the terms of section 4 of the State Immunity Act 1978."

(4) Although Prof. Mazzawi came off the record on 18 February 1993 and the Industrial Tribunal was twice informed of that fact, notices continued to be sent t him by the Industrial Tribunal, including a notice dated 6 May 1993 stating that the hearing of a preliminary issue would take place on 29 June.

(5) On 29 June 1993 no one attended the hearing at the Industrial Tribunal on behalf of UAE. Telephone calls were made on that day from the Industrial Tribunal to the Embassy and to the Medical Department in Harley Street to establish why there was no attendance. The Tribunal, sitting at London (South), proceeded to hear and decide a preliminary issue in the absence of any representation from UAE. One of the Applicants was represented by counsel. The preliminary issue was whether the Tribunal had jurisdiction to consider the claim, having regard to the provisions of the State Immunity Act 1978.

(6) For reasons entered in the register and sent out on 30 July 1993, the Tribunal unanimously decided that, by virtue of S.4 of the State Immunity Act 1978, UAE was not immune from the Tribunal proceedings in the United Kingdom and the Tribunal had jurisdiction to hear the complaints under the Employment Protection (Consolidation) Act 1978, as amended. In its Reasons the Tribunal referred to the provisions in sections 1, 2, 4 and 16 of the State Immunity Act 1978 and stated, in paragraph 6 of the Decision,

"The respondent did not appear at today's hearing. The respondent Embassy is fully aware of today's hearing but have chosen not to attend the hearing. Both applicants gave evidence…"

The Tribunal stated that it found as a fact that S.16 of the State Immunity Act had no application to either applicant. Neither of them was employed as a member of the Respondent's Mission or in a Consular post. No diplomatic privileges or immunities attached to their job with the Respondent. They were local employees. Neither Applicant was a national of the Respondent. They were employed under contracts made in the United Kingdom and performed their work wholly or party in the United Kingdom. (The Tribunal rejected the contention of counsel for Mr Abdelghafar that the UAE had submitted to the jurisdiction.)

(7) As directed by the Tribunal on 30 July 1993, an interlocutory hearing took place on 19 October 1993. Notification of that hearing was sent out to the UAE Embassy on 16 September 1993. Solicitors instructed to act on behalf of the UAE on 20 September 1993 were not notified of the hearing until they received a telephone call on the day of the hearing. A solicitor attended the interlocutory hearing at which an order was made against UAE for the disclosure of personnel files relating to the Applicants by 2 November, but was unable to make effective representations in the absence of relevant documents. It was only on that day that the solicitors received a copy of the decision on the preliminary issue. The Tribunal had sent the documents to the Medical Department in Harley Street who had passed them on to the Embassy officials. They erroneously thought that the requisite steps to deal with the matter were being taken by the officials in Harley Street.

(8) The time for appealing against the decision on the preliminary issue had expired on 10 September 1993. Notice of Appeal was not received at the EAT until 2 November, 52 days out of time. On 7 February 1994 the Registrar refused an application made by solicitors on behalf of UAE to extend the time for appealing. This appeal is against that decision.

The Employment Appeal Tribunal Rules

4. The current Rules of the EAT came into force until 16 December 1993. On the question of appeals out of time, there is no material difference between those Rules and the earlier 1980 Rules. It is sufficient to summarise the effect of the Rules as follows:-

(1) The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision or order of the Industrial Tribunal were sent to the appellant. Those responsible for making the Rules have decided that 42 days is ample time for a disappointed party to take advice on appealing, to decide whether or not to appeal, and to prepare and serve the necessary documents.

(2) The Notice of Appeal in, or substantially in, accordance with the prescribed form must be served on the Appeal Tribunal.

(3) The time prescribed by the Rules for service of the Notice of Appeal may be extended, whether it has already expired or not.

(4) The application is heard and determined in the first instance by the Registrar as an interlocutory application. It may be, and normally will be, dealt with by the Registrar without an oral hearing. Written representation may be made.

(5) An appeal by the party aggrieved by the decision of the Registrar lies to the judge who may determine the appeal himself or refer it to the Appeal Tribunal. There is an oral hearing, unless the parties agree to the contrary. The appeal is conducted as a rehearing of the original application to extend time.

Exercise of Discretion

5. It is common ground that the Tribunal has a discretion to grant or refuse an extension on time. In relation to the exercise of that discretion three decisions are commonly cited –

Marshall v Harland & Wolff Ltd [1972] ICR 97 (a decision of the National Industrial Relations Court – Sir John Donaldson (President))

Duke v Prospect Training Services Ltd [1988] ICR 521 (EAT – Popplewell J.(President))

Martin v British Railways Board [1989] ICR 24 (EAT – Wood J. (President)).

6. In the procedure and practice of the Appeal Tribunal it is important to pay regard not only to earlier decisions of the Appeal Tribunal and appeals from those decisions to higher courts, but also to decisions on the procedure and practice of the Supreme Court on similar points. The Appeal Tribunal and the law which it applies are not sealed in separate compartments impervious to the influence of general principles laid down from time-to-time by other courts in relevant areas of substantive law and procedure. Two recent decisions of the Court of Appeal outside the area of employment law are relevant to the approach to the question of extensions of time. The decisions in Costellow v Somerset County Council [1993] 1 AER 952 and Regalbourne Ltd v East Lindsey District Council (The Times March 16. 1993) deserve careful consideration.
7. In the light of the guidance contained in these authorities it is possible to state, with reasonable precision, the principles which govern the exercise of the Appeal Tribunal's discretion to extend time and to identify those factors regarded as relevant.

(1) The grant or refusal of an extension of time is a matter of judicial discretion to be exercised, not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice. The exercise of the discretion is a matter of weighing and balancing all the relevant factors which appear from the material before the Appeal Tribunal. The result of an exercise of a discretion is not dictated by any set factor. Discretions are not packaged, programmed responses.

(2) As Sir Thomas Bingham M R pointed in Costellow v Somerset CC (supra) at 959C, time problems arise at the intersection of two principles, both salutary, neither absolute.

" … The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met…"

The second principle is that

" … a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of a procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. …"

(3) The approach indicated by these two principles is modified according to the stage which the relevant proceedings have reached. If, for example, the procedural default is in relation to an interlocutory step in proceedings, such as a failure to serve a pleading or give discovery within the prescribed time limits, the court will, in the ordinary way and in the absence of special circumstances, grant an extension of time. Unless the delay has caused irreparable prejudice to the other party, justice will usually favour the action proceeding to a full trial on the merits. The approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings.

(4) An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default.

Application of Principles by the EAT

8. In accordance with the general principles stated above, the Appeal Tribunal follows the guidelines for the exercise of its discretion to extend time. They are only guidelines. They do not fetter the exercise of the discretion. They are intended to ensure, as far as possible, consistency of treatment, predictability of result and the attainment of justice.

(1) The time-table set by the E AT Rules should be observed by the parties and their lay and professional advisers. Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or of the importance of compliance. When parties are notified of the reasons for the Industrial Tribunal's decision they are informed of the 42-day time limit for appealing. The limits will, therefore, only be relaxed in rare and exceptional cases where the Tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.

(2) The Tribunal's discretion will not be exercised, unless the appellant provides the Tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the Tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which had occurred. For example, the following explanations have been rejected by the Appeal Tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the Employment Appeal Tribunal or the Industrial Tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality. It is always possible, in cases where there bay be unavoidable delay, for an extension to be agreed between the parties or granted by order of the Appeal Tribunal before the period has expired. Alternatively, a Notice of Appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later.

(3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion. It is, of course, impossible to make an exhaustive list of factors. The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the Notice of Appeal was served only one day out of time. Parties who have decided to appeal are also strongly advised not to leave service of the Notice of Appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail. That risk can be avoided by service of the Notice of Appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused.

9. Thus, the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time?

Explanation for the delay of UAE

10. An explanation for the default of the UAE is to be found in a number of letters written by their solicitors. Those solicitors were not instructed until about 20 September 1993 and came on the record as notified in a letter sent to the Tribunal at London (South) on 22 September 1993. In that letter the solicitors made it clear that they did not have a copy of the Originating Application or the Notice of Appearance. They asked to be supplied with copies and with information as to the current position in the case. The solicitors never received a reply to that letter from the Industrial Tribunal. As already noted, the Industrial Tribunal did not serve on the solicitors notice of the interlocutory hearing for the 19 October 1993. It was only on that date that the solicitors obtained a copy of the decision which had been sent out to the parties on 30 July 1993. As to the delay which occurred between the sending out of the Tribunal decision at the end of July and the instructions to solicitors on 20 September 1993 the only explanation offered is that the documents sent by the Industrial Tribunal to Harley Street were sent on to Embassy officials at Princes Gate who erroneously thought that the requisite steps were being taken by the Harley Street officials.
11. If that explanation for the delay were the only material relevant to the exercise of the discretion, I would have dismissed the appeal from the Registrar's Order refusing to extend time. The explanation offered does not, in my view, excuse the delay which occurred between the notification of the decision and the instructing of solicitors or the further delay between the instructing of the solicitors and the service of the Notice of Appeal. Dr Abbas, who appeared in person on the appeal, alleged that delaying tactics were being employed, I do not express any view about that. I agree with the submission of Mr Snelson, on behalf of the Applicants, that no acceptable excuse was put forward for the failure to comply with the time limits. It appears that the delays were caused by UAE's neglect or mismanagement of the case involving loss or mislaying of papers, lack of internal effective communication and general inactivity and dilatoriness in giving instructions, providing documents and obtaining or extracting documents from other sources. In those circumstances Mr Snelson submitted that the failure to institute the appeal in time had not been caused by any exceptional circumstances.
12. Against that Mr Smouha strongly submitted that there had been a serious irregularity in the hearing in the Industrial Tribunal on 29 June. The evidence showed that UAE had not been served with a valid notice of the hearing date by the Tribunal. Documents had been sent to Prof. Mazzawi who was not on record. That defect was not cured by making two telephone calls on the day of the hearing to the Medical Department and the Embassy. There should have been proper service documents on the UAE at Princes Gate. That had not occurred. The difficulty with that point is that it does not explain or excuse the delay which occurred in taking the matter to an appeal. One would have thought that, in those circumstances, the UAE would have acted promptly to put the matter right.
13. Mr Smouha argued that the UAE had an unanswerable objection to jurisdiction. The decision of the Tribunal, make at a hearing of which UAE was not properly notified and at which it was not represented, was plainly wrong. His contention is that both applicants were members of the Mission within the meaning of the Vienna Convention scheduled to the Diplomatic Privileges Act 1964 and that S.16(1)(a) of the State Immunity Act 1978 applies to confer immunity and deprive the Industrial Tribunal of jurisdiction. On this point, it has already been mentioned that the merits of the appeal are not normally regarded as a factor of significance in the exercise of discretion. The more merit there may be in an appeal, the more surprising it is that there has not been prompt action in instituting it.
14. There is, however, an exceptional feature of this case which has persuaded me that time should be extended. That feature has been identified by Mr Smouha as State immunity. State immunity is a doctrine of public international law now incorporated in the domestic law of the United Kingdom by the State Immunity Act 1978. The doctrine recognises that there may be real difficulties and serious objections in tribunals in the United Kingdom conducting investigations into the internal affairs of the embassy of a foreign state. For present purposes the important point on State immunity is that it is provided by S.1(2) of the Act that the court itself has a positive duty to give effect to the immunity conferred by the Act, even in cases where the State does not appear in the proceedings in question. Section 1(2) is in these terms

"A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question."

15. The decision of this Tribunal in Sengupta v Republic of India [1983] ICR 221 illustrates how seriously the Court regards this obligation. In that case the foreign State (India) did not appear to take the point on jurisdiction. The Court asked for the appointment of an amicus to assist it. If the court has a duty under statute to give the effect to the immunity conferred, even though the state does not appear to claim it, that duty may be all the greater in a case where the foreign state has, as here, expressly taken the point of immunity.
16. The over-riding duty of the court, of its own motion, is to satisfy itself that effect has been given to the immunity conferred by the Act. That duty binds all tribunals and courts, not just the court or tribunal which heard the original proceedings. If the tribunal in the original proceeding has not given effect to the immunity conferred by the Act, then it must be the duty of the Appeal Tribunal to give effect of it by correcting the error. The alleged error of the tribunal cannot be corrected in this case unless an extension of time is granted to the UAE to appeal. The UAE has shown that there is a reasonably arguable case that the Industrial Tribunal failed to apply the law of State Immunity correctly. That makes this an exceptional case for an extension of time.
17. For those reasons the appeal is allowed. The time for appealing is extended.