United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 1054_93_1407

Appeal No. PA/1054/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 July 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(AS IN CHAMBERS)

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LE MONDE PETIT LTD          APPELLANTS

MS J CORLESS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR M REEVE

(OF COUNSEL)

Messrs Linder-Myers

Solicitors

Phoenix House

45 Cross Street

Manchester M2 4JF

For the Respondent MR A EDIE

(OF COUNSEL)

Messrs Southern Jobling & Ashworth

Solicitors

PO Box No 21

Mackenzie House

68 Bank Parade

Burnley

Lancs BB11 1UB


 


MR JUSTICE MUMMERY: (PRESIDENT) This is an appeal by a Company, Le Monde Petit Ltd, against the refusal of the Registrar on the 4 January 1994 to extend the time for appealing to the Appeal Tribunal. The Appellant, Le Monde Petit Ltd, wishes to appeal against a decision of the Industrial Tribunal held at Manchester on the 25 August 1993. For the reasons notified to the parties on the 20 September 1993, the Tribunal came to the unanimous decision on a preliminary point that the Applicant in the proceedings, Ms Corless, had at the relevant date the period of continuous employment required by the Employment Protection (Consolidation) Act 1978 to give the Tribunal jurisdiction to hear her complaint of unfair dismissal. They directed that the application be listed for determination on the merits by a differently constituted Tribunal.

The complaint of unfair dismissal from the position of a Deputy Nursery Manager was made by Ms Corless in her application presented to the Tribunal on the 23 January 1993. In that application she gave as the dates of her employment 19 November 1990 to the 13 November 1992. She referred in the details of her complaint to the circumstances in which she had been dismissed. She stated that she was handed a letter terminating her employment with effect from the 13 November. That happened shortly after lunch on the 6 November.

Her claim was contested by the Company. In the Notice of Appearance they stated that her employment terminated on the 13 November 1992. There were details set out in an attached document of the grounds on which the application was resisted. It was made clear that the employers case was that employment commenced on the 19 November 1990 and came to an end less than two years later. The point is spelt out on page 2 of the letter attached to the Notice of Appearance in which it is submitted that it is clear that Ms Corless did not work for the Company in excess of two years.

When the case came on for hearing on the 25 August the Company was not legally represented. A Director, Mr Hindle, attended. Ms Corless was represented by a Solicitor. He presented to the Tribunal an amendment to the Originating Application. The important effect of the amendment was to allege that Ms Corless was entitled, on termination of employment, to a period of one month's notice. That was her understanding of the position throughout her employment from April 1992 onwards. She therefore submitted in the amendment that on the 6 November 1992 she was entitled to a month's notice; that would expire on the 5 December 1992. She would therefore qualify for protection against unfair dismissal.

The Tribunal found in Ms Corless' favour. Mr Hindle was, according to an affidavit that he has sworn, taken by surprise by this development. He felt unable to argue against it as he was completely out of his depth. According to the affidavit sworn on the 12 July the Chairman of the Tribunal told him that the document containing the amendment made no difference to the proceedings. He was not offered an adjournment. The Tribunal then found against him on the grounds that the month's notice extended the effective date of termination so as give Ms Corless the necessary two years. He repeats that he was completely taken by surprise by that decision. It certainly was not the case that he thought he faced on reading the originating application.

The decision was sent out to the parties. Mr Hindle did not instruct Solicitors until after the expiration of the 42 day period allowed for appealing. Under the Employment Appeal Tribunal Rules 1993 which repeat the relevant provisions under the earlier Rules in force at that time, an appeal to this Tribunal must be instituted by serving on the Tribunal a Notice of Appeal and certain other documents 42 days from the date on which the written reasons for the decision were sent to the Appellant.

His evidence is that on the 4 November he instructed Solicitors. Those instructions were given after he had received notice from the Industrial Tribunal by letter of the 11 October that the hearing of the application would take place, or was likely to take place, between the 6 and 17 December. Mr Hindle was required by the letter to return by the 5 November an enclosed section stating what dates in that period would be unsuitable for the hearing.

Once he had instructed Solicitors things speeded up. Counsel was instructed, a Notice of Appeal was drafted and dated the 5 November. It was received here on the 8 November. The Notice of Appeal was accompanied by a letter from the Solicitors, Linder Myers, asking for an extension of time. That was refused by the Registrar. The question is whether an extension should be granted.

An affidavit sworn on behalf of Ms Corless by a trainee Solicitor who attended the hearing agrees that at the hearing on the preliminary point the Company was not represented. Mr Hindle had indicated to the Tribunal that he had never been to an Industrial Tribunal before and that he was unfamiliar with the proceedings and the way they were conducted. The recollection of Mr Archibald, the trainee Solicitor, is that the Chairman advised Mr Hindle that, if the matter was to proceed further, it would be in the best interests of the Company to seek legal advice. Mr Hindle did not seek legal advice until the first week of November.

That is a factor relied on strongly by Mr Edie in his submissions on behalf of Ms Corless. The essence of his submission is simple. The Rules are clear. There are 42 days in which to appeal. The cases show that that time limit is strictly adhered to. He referred in his skeleton argument to two well known cases, Marshall v Harland & Wolff [1972] ICR 97 and Duke v Prospect Training Services Ltd [1988] ICR 521. The latter case shows how strict the time limits are. In that case, a delay of one day caused by pressure of work on the Solicitors for the Appellant was held not to be a justifiable excuse for the delay and the time limit was not extended.

It also has to be borne in mind that there are very good reasons for keeping to time limits. The paramount principle is that the Rules of Court and practice should be observed, because they are devised in the public interest to promote the expeditious dispatch of litigation. As the Master of the Rolls has recently observed, prescribed time limits are not targets to be aimed at or expressions of pious hope. They are requirements which have to be met.

Mr Edie submitted that the Tribunal should only exercise the power to extend time contained in Rule 37 if there is a justifiable excuse and the case is an exceptional one. He says there is nothing exceptional about this; it is simply a case of somebody acting in person, who was told to get legal advice, leaving it too late to do so. The delay in seeking legal advice is just another chapter in a history of delay in these proceedings. Mr Hindle had from the end of January 1993 to the hearing in August 1993 to get legal advice. He did not do so. He then had from the 25 August, when the Chairman gave advice to seek legal help, until November when he acted on that advice. In other words, he only had himself to blame. More accurately, his Company only had him as a director to blame for the situation in which it found itself - appealing too late.

Those are all powerful considerations. Nothing I am about to say will detract from the general rule that time limits are time limits. The discretion given to extend time, however, does contemplate exceptions. Exceptions may be made where, looking at all the relevant circumstances, justice requires that an extension should be granted rather than refused. Although this case is close to the borderline, I have come to the clear conclusion that there are unusual features which justify extending the time.

There are two important features which have persuaded me to do that. The first is that Mr Hindle was acting in person at a time when it was definitely a disadvantage to him to be acting in person. I am referring to the amendment allowed by the Tribunal on an application made for the first time at the hearing. I can well understand a litigant in person, who had drafted the Notice of Appearance, going along to the Tribunal thinking that it was a relatively straightforward case. The dates set out in the Notice of Appearance, indeed the dates set out in the Originating Application, did not indicate that Ms Corless would be able to prove two years continuous service for the purpose of giving the Tribunal jurisdiction.

He was then faced with an amendment. Even a trained lawyer may find last minute amendments difficult to deal with. They may require an adjustment to one's whole thinking about the case. The most frequent reaction of a lawyer presented with an application for an amendment on the day of the hearing, of which he has had no notice, is to seek an adjournment, even if only for a short time, in which to reconsider the position. He may need to reconsider the position on the evidence. He may have to call different evidence or look at different documents in order to deal with the late application for amendment.

On the facts set out in Mr Hindle's affidavit, which are not challenged, he found himself at a disadvantage. That does not explain the delay which then occurred between being notified of the decision and instructing Solicitors. That point, however, is covered by the second factor which is an unusual feature of this case. Mr Hindle says that he believed that he had not got a right of appeal against this decision, because it was a preliminary decision. That is how it is described in the decision which was notified to him. It was a preliminary decision on the jurisdictional question of two years continuous service.

He says that he spoke to a gentleman at the Regional Office of ACAS in Accrington shortly after the decision was received about a possible appeal. He was led to believe by the official, Mr Wharton, that there was no appeal against a preliminary decision, and that there were only appeals against substantive decisions. He continued under the belief that it was not possible to appeal against a preliminary decision until the time when he decided that he should take legal advice. He decided to do that after receiving the letter which indicated that the 5 November was the deadline for supplying inconvenient dates for the substantive hearing looming before Christmas. He wanted to defend the claim on the merits. He therefore took legal advice. That is resulted in the speedy initiation of the appeal already described.

Mr Hindle sets out the disadvantages of being without legal experience and unappreciative of the legal niceties of the situation later in his affidavit. He says in paragraph 25:

"I was completely unaware until taking legal advice that there was an appeal against this preliminary decision especially following my discussion with Mr Wharton of ACAS after the decision was sent out. There is no specific reference in the booklet (ITL1) which I received at the outset to appeals against preliminary decisions. I relied on this booklet considerably throughout the Tribunal proceedings. Furthermore, I did not appreciate that time limits are strictly applied in respect of appeals by the Employment Appeal Tribunal."

The legal position is clear. There is no difference in appealing against a preliminary decision and a final decision on the merits. But I do accept that it is understandable that a litigant in person might well be led into thinking by booklets he has read or by conversations that he has had with someone, such as Mr Wharton of ACAS, that there was no right of appeal against a preliminary decision. Appeals, for example, against interlocutory decisions are generally more restricted in their scope than appeals against final decisions. From many interlocutory decisions no appeal lies without leave.

The innocence of Mr Hindle about this legal position was understandable. In the circumstances it was a reasonable misunderstanding by him. That, in my view, covers the period of the delay between the notification of the decision and the institution of the appeal. He has provided in that evidence a justifiable excuse for not acting earlier. There can be no criticism of his legal advisers, since they acted as quickly as possible once they had been instructed.

A number of other points were made in argument. I do not regard them as particularly significant. Mr Reeve addressed me to some extent about the merits of the appeal. They are not a relevant consideration on questions of time limits. They become relevant if and when the appeal is actually heard. Mr Edie pointed out that he does not have to show any prejudice in order to resist this application. Prejudice of a kind is suffered by his client who has won the case and then, because of the delays in getting on with the appeal, has to wait longer for the resolution of this matter than if the appeal had been brought in time. The cases hold that matters of no prejudice or of some prejudice are not the decisive matters. The decisive matters are: Is there a justifiable excuse for the delay? Are the circumstances, viewed overall, so exceptional as to justify a departure from the strict enforcement of the general rule?

For reasons which I have attempted to explain I do regard this as an exceptional case. The matters are explained in Mr Hindle's affidavit, without that he would not have stood a chance of succeeding. The affidavit is detailed and credible. I shall allow the appeal. The time for appealing is extended.