United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 123_94_1407

Appeal No. PA/123/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 July 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

(AS IN CHAMBERS)

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THE FIRE BRIGADES UNION          APPELLANTS

(1) MR M KNOWLES (2) MR D JOHNSON          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MS LAURA COX QC

Messrs Robin Thompson & Partners

Solicitors

Congress House

Great Russell Street

London WC1B 3LW

For the Respondents MR J GAVAGHAN

The Free Representation Unit

Room 140

1st Floor

49-51 Bedford Row

London WC1R 4LR


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against a decision of the Registrar dated 27 April 1994. The Registrar refused an application by the Fire Brigades Union for an extension of time for appealing. The union wish to appeal against a decision of the Industrial Tribunal held at London (South) on 20 October 1993. It notified its decision on a preliminary point on 15 December 1993. It was necessary for the union to make an application to the Registrar because it is common ground that the time for serving on the Appeal Tribunal a Notice of Appeal against that decision expired on 26 January 1994. The Notice of Appeal was not in fact received by this Tribunal until 11 February 1994. The appeal was 15 days out of time.

Under the Employment Tribunal Rules 1993, Rule 3(2) states:

"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..."

Rule 3(1) requires that every appeal to the Appeal Tribunal shall be instituted by serving on the Tribunal a notice of appeal in, or substantially in accordance with, the scheduled form, along with certain other documents.

A party who is out of time for appealing may apply for an extension of time. The application for the extension is heard by the Registrar. She has a discretion whether or not to grant the extension. The party aggrieved by her decision may appeal. The appeal is a re-hearing. The Judge to whom the appeal has gone has a discretion whether or not to grant the extension.

After the Registrar had refused the extension in this case the solicitors acting for the Fire Brigades Union indicated that they wished to appeal to the Judge. The case has been very well argued on each side. Before going to the facts of the particular case it may be helpful to summarise the effect of the reported cases on the exercise of this discretion. Three cases are regularly referred to in appeals on this point - Marshall v Harland & Wolff Ltd [1972] ICR 97; Duke v Prospect Training Services Ltd [1988] ICR 521 and Martin v British Railways Board [1989] ICR 24. There is no point in reading those cases in detail or even extracts from them. It is possible to summarise their effect briefly.

The discretion, like all judicial discretion, is guided by general principles of consistency, reason, justice and relevance. In more concrete terms this means that the approach to the exercise of the discretion is that prima facie there should be strict adherence to the time limits. As the Master of the Rolls observed in the Court of Appeal in Costellow v Somerset County Council [1993] All E.R. 952 at page 959C:

"There is a salutary principle that the Rules of Court and associated Rules of Practice devised in the public interest to promote the expeditious despatch 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 Master of the Rolls observed that that principle intersects with another principle, equally salutary, though neither principle is absolute. That other principle is that a person should not be denied an adjudication of his case on the merits because of a procedural default, unless the default causes prejudice to the other side for which an award of costs cannot compensate. The embodiment of that principle is the rule in the Supreme Court (Rules) Order 3 Rule 5 and in the Employment Appeal Tribunal Rules, Rule 37, which confers a discretion to extend time, even where it has already expired.

The effect of these two principles is that an extension of time for appealing is granted only in rare and exceptional cases. As indicated by Lord Donaldson in Marshall v Harland & Wolff (and more recently by the Court of Appeal in Regalbourne Ltd v East Lindsey District Council Times March 16 1993), (summarised in the 4th Cumulative Supplement to the White Book 1993 at 3//5/1):

"Courts and Tribunals are more reluctant to exercise discretion to extend time in the case of an appeal than in the case of an ordinary interlocutory matter such as a failure to serve a pleading or to comply with requirements of discovery"

The reason for that is that, in the case of an appeal against a final decision on the merits, the party seeking to appeal has already had a chance of securing a favourable decision. There is less reason for giving him a second chance than if he had never had a trial of his claim at all.

As appears from the Regalbourne case, in the case of an Appeal to the Court of Appeal and to this Tribunal, following the principles of the High Court, an acceptable explanation for the appeal being out of time is required. Even if there is an acceptable explanation, the Court may still refuse to extend time if there was substantial delay or if to extend the time would significantly prejudice the Respondent.

The reported cases deal with what is a justifiable excuse for delay. The only leniency shown in the cases is towards unrepresented parties who might be excused for not being fully aware of the importance of complying with strict time limits. The cases show that the Employment Appeal Tribunal may refuse to extend time even where the delay is very short (one day in the case of Duke). It will refuse to extend time where the explanation for the delay is pressure of work on legal advisers or a pending application for legal aid or waiting for advice from some other supporting organisation such as the Equal Opportunities Commission or the Commission for Racial Equality. It is no excuse for lateness of an appeal that the Remedies have not yet been determined or that there is an application for a review pending.

On the hearing of such an application it is not relevant to investigate the merits of the appeal. The only question is whether there was a justifiable excuse and whether there are exceptional circumstances for departing from the strict timetable. Normally the question whether there will be lack of prejudice to a Respondent by extending the time will not be a significant factor. All these instances illustrate how difficult it is to persuade this Tribunal to extend the time for appealing.

I now consider the facts of this case. They are unusual in a number of respects. The earlier reported cases were in the context of final decisions on the merits, two of them unfair dismissal claims and the other, Marshall v Harland & Wolff, a redundancy claim. They were straightforward cases in which there had been a full determination of the merits of the dispute and, for one reason or another, a failure on the part of the disappointed party to comply with the rules for serving the Notice of Appeal within 42 days.

This case is not like that. The point decided by the Industrial Tribunal was described by it as a preliminary point, as identified in a letter of 28 July 1993, following a hearing for directions which had taken place two weeks previously. The direction for a preliminary point arose in the context of complaints by two union members, Mr Knowles and Mr Johnson, under section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992. Section 64 confers on an individual who is or has been a member of a trade union the right not to be unjustifiably disciplined by the union. It is provided that, for this purpose, an individual is "disciplined" by a union if a determination is made that he should be expelled. Section 65 deals with the meaning of "unjustifiably disciplined". It provides:

"An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is -

(a) conduct to which this section applies, or

(b) something which is believed by the union to amount to such conduct".

..."

Section 65(2) provides:

"This section applies to conduct which consists in -

(a) failing to participate in or support a strike or other industrial action (whether by members of the union or by others), or indicating opposition to or a lack of support for such action;..."

The complaints made by Mr Knowles and Mr Johnson in their Originating Applications were they had been unjustifiably disciplined by the union in that they had been expelled for acting contrary to or failing to carry out the policies of the union under Rule 26(1)(g) of the union's Rule Book. Mr Knowles complains that the action taken which resulted in his expulsion was that he had commenced employment on 15 April 1992 in his free time as a retained firefighter for Shropshire Fire and Rescue Service at Tweedale Fire Station, Telford whilst already employed full time as a whole-time firefighter for Shropshire Fire and Rescue Service at Wellington Fire Station in Telford. The employments were under separate contracts, although for the same Fire Service. The union terms this dual employment as a whole-time retained duty system and is opposed to it.

Mr Knowles objected to the union's disciplinary action against him, because the ban on whole-time retained duties by the union was a form of industrial action and therefore it was not empowered to force him to take part in the action; and also that a ballot conducted by the national membership in 1990 on the reintroduction of whole-time retained duties was unfairly conducted and in breach of the union's rules.

Mr Johnson's complaint is in similar terms. The response of the union is the same in both cases. It is conceded that the Applicants were expelled, that they failed to pursue their right of appeal under the union rules and that they were expelled for acting contrary to the policies of the union in accordance with Rule 26(1)(g). But it is denied that the union's policy against whole-time retained duties constitutes industrial action. For that reason it is contended that the expulsion was lawful.

I have read that in greater detail than normally necessary in order to explain the nature of the Tribunal's decision. The Tribunal identified as a preliminary question the following: whether or not the Respondents' policy in accordance with the National Agreement of 1977 of opposing a system of whole-time firefighters being employed in addition on retained firefighting contracts constitutes industrial action within the meaning of that phrase in section 65(2)(a) of the 1992 Act.

At the hearing on 20 October 1993 the Tribunal heard evidence about the policy from the General Secretary of the union, Mr Cameron. It also seems to have heard evidence from Mr Bryant, the Executive Council member of the union for the region that includes Shropshire. He was involved in the negotiations about the reduction of Tweedale fire station to a retained station. The Tribunal set out the facts and the legal submissions, referring to a number of decided cases. It came to the conclusion that the preliminary point should be decided in favour of the Applicants. The last sentence of the decision reads:

"The Applicants succeed on the preliminary point, and the matter will now go forward to a full hearing on the merits."

It appears that a further hearing date has been fixed to take place on 14 January 1994, but has been adjourned pending the appeal which the union is attempting to make against the decision.

There is a dispute between Counsel as to whether the Industrial Tribunal has finally determined this dispute. On behalf of Mr Knowles and Mr Johnson, Mr Gavaghan argues that the matter really has been decided and that all that remains to be dealt with is the matter of the declaration which he submits the Industrial Tribunal is now bound to grant in accordance with Section 66(3). That provides:

"Where the tribunal finds the complaint well-founded, it shall make a declaration to that effect."

That interpretation of the position is disputed by Ms Cox on behalf of the union. It is not possible or even appropriate for me to adjudicate on this now. It is a matter that the Tribunal will have to sort out itself. All I can say at this stage is that it does appear that the Tribunal itself thought (a) it was deciding only a preliminary point and (b) that, in consequence of deciding that point in favour of the Applicants, there would be a full hearing on the merits. It is better placed than I am to know whether a further hearing is required as a result of its decision.

I have gone into detail on this point because it seems to be an important feature of this case. It is not an appeal against a final decision on the merits. I expressed doubts in argument as to the wisdom of the Industrial Tribunal ordering this matter as a preliminary question in the first place. Again, that is not for me to decide at this stage. But as it did order a preliminary point as a step in deciding a full hearing, there is much force in the argument of Ms Cox that this case does not fall within the rationale of Lord Donaldson's remarks about the strictness of time limits on appeals. The reason for that strictness, as he explains, is that there has been a trial; the matter has been investigated; and, if you want to appeal, it is imperative to comply with the time limits. If there has not yet been a trial to determine the merits of the application, that is a factor that leans more in favour of relaxing the strict time limits. That reasoning is consistent with the observations of the Court of Appeal in the case of Costellow v Somerset County Council. The general principle is that a procedural default should not lead to dismissal of actions which have not yet been investigated on the merits, if it is possible to compensate any prejudice in costs or if there is no prejudice.

I must look at the other factors put forward as relevant considerations by the union. I find them less impressive. The factors relied on are all conveniently set out in a letter sent by the union's solicitors to this Tribunal on 15 April 1994. The letter offers an explanation for the appeal being out of time. The facts offered in explanation are not disputed by Mr Gavaghan. He submits that they do not amount to a justifiable excuse. The facts in summary are these: that, although the decision was entered in the register on 15 December, the Tribunal, instead of sending the decision to the solicitors on the record, sent it to the union offices. The result was the solicitors did not receive it until a week later. By that time Counsel instructed in the case before the Industrial Tribunal had gone on Christmas vacation. The solicitors were aware of the 42 day limit and when it would expire. So, when Counsel returned from holiday on 7 January they asked Counsel to deal with it as a matter of urgency. A Notice of Appeal was settled. The Industrial Tribunal Regional Office was informed on 10 January of the intention to appeal and of the fact that Counsel had been instructed to settle a Notice of Appeal. It was on that basis that the hearing fixed for 14 January was adjourned. The Notice of Appeal is dated 21 January 1994. That is within the 42 day time limit. It was sent off from the Solicitors' office with a covering letter of 20 January. Unfortunately, it was not received in this Tribunal until 11 February. The reason for that is that, by mistake, the solicitors sent the Notice of Appeal to the Regional Office at London (South) instead of the Employment Appeal Tribunal. It was not simply a question of putting the Notice of Appeal in a wrongly addressed envelope. The covering letter was also wrongly addressed. It was an unfortunate mistake. The letter addressed to London (South) asked for acknowledgment of the receipt of the enclosed Notice of Appeal. That was not given. So it did not come to the attention of the solicitors that they had sent the Notice of Appeal to the wrong office.

It is not possible to blame anyone else for this other than the solicitors. Mistakes happen. It is not possible to blame the Industrial Tribunal failing to point out the error. As far as the Industrial Tribunal was concerned it received a letter that was addressed to it, even if it enclosed a document that was not appropriate for it to receive. No blame at all of course attached to the Respondents to this Appeal. It is pointed out that by covering letter of 20 January a copy of the Notice of Appeal was sent to the Respondents' representative at the Free Representation Unit. That was a matter of courtesy. It was a sensible course to take, but no blame can be attached to the Respondents or their representatives.

It was on the basis of those facts that Ms Cox submitted in a full argument that this was an exceptional case. It was to be distinguished from the earlier cases. It is not a question of a solicitor doing nothing, because he was waiting for legal aid, or instructions. It is not a case of the solicitor, through overwork, overlooking the need for getting on with preparing an appeal. In this case the solicitor was aware of the time limits. He attempted to comply with them. He sent off the Notice of Appeal in time to arrive here. It was sent to the wrong place, so there was no lack of diligence on the part of the representative solicitor. It was one of those mistakes that occur in the best regulated of offices. It was therefore said I should extend the time. It was argued there was no prejudice suffered to the Respondents. They knew there was going to be an appeal. The whole thing represented an exceptional chain of events, as Ms Cox described it.

Mr Gavaghan presented a cogent argument against this. He said six weeks is a period which is generous. It should be strictly observed. Time should only be extended in rare cases. What had been offered was an explanation, but not an excuse that amounted to an exceptional circumstance. The solicitors in question should not be regarded leniently; they are very experienced in this field and they could have checked with this Tribunal when they did not receive an acknowledgment. If they had, they would have found out that the Notice of Appeal had not been received and they would have been able to correct the position. He disputes the argument about lack of prejudice to his clients. He submits, quite rightly, that the fact that his clients may have suffered no prejudice is not a significant consideration in this discretion. He submits alternatively that it is not correct to say there was an absence of prejudice here. His clients' case was that the Applicants in the proceedings had been unjustifiably disciplined. They have not been reinstated. The result of the union being out of time for the appeal was that there had been a wait for them in regaining the benefits of union membership, of which they should never have been deprived. So they had suffered prejudice.

This is an evenly balanced case on the explanations for the delay. If the only matter was whether this explanation was good enough to extend time, I would not have been inclined to extend the time because of the strictness of the rule. The one factor that persuades me that this is an exceptional case and justifies extending the time, is that the dispute between the parties has not been finally determined. The Tribunal itself thought it was deciding a preliminary point. The Tribunal itself thought that the resolution of that point did not finally dispose of the proceedings. It clearly thought that there would have to be a further hearing on the merits. It may have been wrong about that. Mr Gavaghan says it is; Ms Cox says it is not. It is really not for me to decide. It is sufficient for the purposes of exercising this discretion that the apparent preliminary nature of this decision and the fact that there is to be a further hearing make it an exceptional case. In general the courts will be more lenient in an out of time case where there has not yet been a final disposal of a case on the merits. That is for the general reason that it is a salutary principle that a party should not be denied an adjudication of the case on the merits because of a procedural default. The union's case here is that there has not yet been a full adjudication of the claim against it on the merits and that it should not be deprived of the right to pursue this appeal because of the oversight which occurred in the solicitors' office in sending the appeal to the wrong Tribunal. I agree and, for that special reason, I will allow the appeal against the Registrar's decision, echoing words of Lord Donaldson on page 100 of the Marshall v Harland & Wolff case that this is very much a one-off case. Apart from the special feature of the preliminary point I would not have been inclined to grant the extension.

For all those reasons the appeal is allowed.