At the Tribunal
Before
THE HONOURABLE MR JUSTICE MUMMERY (P)
(AS IN CHAMBERS)
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant NO APPEARANCE BY OR
REPRESENTATION ON BEHALF OF THE APPELLANT
For the Respondents MR K G COOK
(Personnel Officer)
Rother District Council
Town Hall
Bexhill-on-Sea
East Sussex
TN39 3JX
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr David Hindhaugh against the Order of the Registrar dated 8th November 1993.
The Registrar refused to grant an extension of time sought by Mr Hindhaugh for appealing against the decision of the Industrial Tribunal held at Ashford on 16th June 1993. For reasons notified to the parties on 28th June 1993 the Industrial Tribunal unanimously dismissed Mr Hindhaugh's claim of Sex Discrimination against the Respondent, Rother District Council.
The time for appealing against that decision expired on the 9th August 1993. Mr Hindhaugh's Notice of Appeal was not received by the Employment Appeal Tribunal until the 10th August 1993.
Mr Hindhaugh was informed by the Tribunal that his Notice of Appeal had been received after the expiration of the 42 days for appealing allowed by the Rules. He made an application to extend the time for lodging an appeal. That was opposed by the Rother District Council. After Mr Hindhaugh was informed that the Registrar had considered the rival submissions and decided to refuse to extend the time, Mr Hindhaugh informed the Tribunal that, in his view, the refusal of extension was less than fair, bearing in mind that his application was late by only one day, and that the reason that it was late was solely due to the failure of the Royal Mail to honour their obligation that a letter posted on Sunday would arrive on Monday. The letter enclosing the Notice of Appeal had, on Mr Hindhaugh's case, been posted on Sunday 8th August. It should have arrived on Monday 9th August but did not, in fact, arrive until Tuesday 10th August. Mr Hindhaugh said that he was dissatisfied with the Registrar's decision and wished to appeal. This is the hearing of that appeal.
Mr Hindhaugh has not attended. He wrote a letter to the Appeal Tribunal on the 26th March 1994 regretting that he was unable to attend the hearing today. He enclosed his full written submission and asked for it to be placed before the Appeal Tribunal, along with his citation of authorities. He sent his apologies for his absence and explained that his personal situation made it difficult for him to attend in person. He has been unemployed since his employment ceased with the Rother District Council. Having decided that he had no future in England and no hope of following his intended career in local Government, he decided to move to Germany where he now lives trying to carve out a new career in Europe. He has difficulties in supporting himself there and he does not have the money to pay for travel to attend the hearing. I have therefore thought it appropriate to deal with the appeal on the basis of Mr Hindhaugh's written submissions which cover all the detailed points made in earlier letters to the Registrar.
Mr Cook has attended on behalf of the Rother District Council. On the 4th March 1994 he submitted a skeleton argument opposing the appeal. During the course of his submissions he has commented fully on the written submissions of Mr Hindhaugh.
Before turning to the facts and the arguments, it is important to state the law and practice of the Employment Appeal Tribunal on extensions of time. The Rules provide a generous time in which to appeal against a decision of the Industrial Tribunal, 42 days. The Tribunal insists on strict adherence to that time limit. It is only in rare and exceptional cases that time is extended. The strictness of the procedure is illustrated by decisions in which the Tribunal has refused to grant an extension even, as in a case such as this, where the Notice of Appeal is received at the Employment Appeal Tribunal only one day after the expiration of the time limit. The Tribunal will only extend time if a good reason is shown for the delay in sending the Notice of Appeal. It is not sufficient simply to produce an explanation for the delay. The reason must amount to a good excuse for non-compliance with the time limits. In the cases on this point it has been decided that it is most inadvisable for an appellant to leave doing anything about his appeal until the last few days of the 42 day period. If the appellant leaves it until the last few days he runs an increasing risk that something may happen which prevents his appeal being received within the time limit. It is not a satisfactory reason for delay that notice has been given of an intention to appeal; or that the appellant is waiting for a decision on legal aid; or that he has an application for a review of the decision he is seeking to appeal; or that he, or his advisers, are under pressure of work which distract them from getting on with the appeal. The cases also show that the Tribunal is more likely to take a lenient attitude on an application for extension where the appellant has been acting "in person", may not be aware of the importance of complying with the time limit and may not have received the guidance and assistance in the preparation of the appeal available to someone who was professionally represented.
With those general observations I turn to the facts of this case. The proceedings were initiated on the 22nd September 1992 when Mr Hindhaugh presented a complaint to the Industrial Tribunal of Sex Discrimination. He had worked for the Rother District Council as a Cashier from the 10th February 1992 until 7th August 1992 when his employment ceased. Mr Hindhaugh's complaint was that he had received less favourable treatment than women employees of the Council, contrary to the 1975 Sex Discrimination Act. I mention that he was in no position to complain of unfair dismissal since he had not served with the Council for the requisite two year period. He summarised his complaints by saying that he worked in an environment that was anti-male. That staff expected him to behave and think as a female. The staff stopped him from acting according to the customs and habits of a male. He suffered sexual harassment by being required to use the female toilet facilities.
The District Council opposed the application by Notice of Appearance dated the 12th October 1992 in which it was accepted that Mr Hindhaugh had been dismissed. The reason for dismissal was stated to be his failure satisfactorily to complete a period of probationary employment. The Council denied that there had been a discrimination contrary to the 1975 Act.
The complaint was heard by the Industrial Tribunal. Mr Hindhaugh did not attend the hearing on the 16th June 1993. The Tribunal set out its findings of fact and found that the particulars of Mr Hindhaugh's complaints had not been established on the evidence. The Tribunal found that his dismissal was not in any way influenced by his gender. His complaints were not well founded. His application was dismissed.
Mr Hindhaugh was dissatisfied with the decision. His Notice of Appeal, signed by him, gave the address for communication with him as his father's address in Sussex. The Notice of Appeal was dated 2nd August 1993, a date which was in the 42 day time limit. He stated as his grounds of appeal that the Chairman of the Industrial Tribunal had showed bias and had erred in law in refusing a request for discovery of documents. He gave details of the bias which he alleged, that included allegations that the Tribunal had allowed evidence to be heard relating to intemperate remarks he was alleged to have made. It made a finding of intemperate remarks that were offensive and sexually orientated and they decided, he says in error of law, that he could not have suffered any detriment by being asked to use the women's toilets. He also gave details of complaints he made of an erroneous view of the evidence and submitted that the Tribunal had reached an unreasonable conclusion on the facts relating to his complaint.
The important point on this appeal is to ask this question - has Mr Hindhaugh shown a reason for his appeal being out of time which is good enough to excuse the delay? In his submissions he has set out six main points in support of his appeal. I have considered each of them, in the light of the submissions made by the Rother District Council and the comments made by Mr Cook in his submissions this morning, I have reached the conclusion that the Registrar was right to refuse an extension of time and that I should, therefore, dismiss this appeal.
The points relied on by Mr Hindhaugh do not amount to a satisfactory reason or excuse for his Notice of Appeal arriving one day out of time. Briefly, the points are these: first, he relies on his position as a person living outside the United Kingdom, though within the European Union. Since about October 1992 he has been living in Germany. He relies on Article 6 of the Fair Administration of Justice of the European Act in order to submit that, if the Employment Appeal Tribunal enforces the 42 day limit for the submitting of appeals, it will not be treating him, as a German citizen, on an equal footing with a citizen of the United Kingdom, because the Tribunal will not have allowed for the additional time which is necessary for the transmission of mail between the two countries, and will not have allowed for the difficulties of a German citizen trying to pursue, from Germany, a claim in the English Tribunal when in Germany information regarding legal situations in England is not available. This is not a good reason for the delay in this case.
In a letter to the Tribunal dated 29th October 1993 Mr Hindhaugh confirmed, in a letter sent from his father's address, that he was aware that he had 42 clear days in which to lodge his appeal. As I have mentioned, he signed that and dated it the 2nd August 1993. Yet it did not arrive here until the 10th August 1993. For reasons which I shall explain in a moment, he does not in fact rely, as a reason for the late delivery, on any delays that there may be in time taken for mail to be sent from Germany to England. Mr Hindhaugh brought the proceedings before an English Tribunal. It was his duty to comply with the time limits laid down for appealing against a decision of the Tribunal, whether he was still living in England or not. The fact that he had decided to live in Germany does not entitle him to have more than the 42 days provided by the Rules and does not excuse his failure to comply with the limit.
The second point relies on his position as a layman. He refers to decisions such as Martin v. British Railways Board [1989] ICR 24 where Mr Justice Wood recognised that those acting "in person" may need guidance and a more lenient approach to their failure to comply with time limits may be justifiable. He also refers to an earlier decision of Mr Justice Cooke recognising that a layman may not be familiar with the practice of the Courts. Mr Hindhaugh's point is that he was a layman at the relevant time of his employment with the Council. He has no legal training, no previous experience with the legal system and he has only had very limited access to legal text books, particularly since he has been living in Germany.
I accept that that is a relevant factor to take into account. In deciding how much weight I should give to that factor I bear in mind the point mentioned earlier that Mr Hindhaugh accepts that he was aware of the 42 days for lodging an appeal. That was the relevant information he needed on legal practice. He had the information and unfortunately he did not take sufficient notice of the need to comply with the time limit. He left matters to the end of the time limit and took the risk that a letter posted might not be arriving in time.
He takes a similar point as his third submission. That is his personal position and difficulty. He refers to his residence in Germany without any fixed address. That forces him to use his parents' address in England as a mailing address. He says he is under a handicap with no typewriter in Germany. It would be expensive for him to use a secretarial agency. He says that he posted his Notice of Appeal, dated the 2nd August 1993, to his father. On the point on whether he should have sent it direct to the Registrar of the Employment Appeal Tribunal, instead of his father, he proffers the explanation that he had amended page 2 of the Notice of Appeal. So it was necessary for him to return it to his parents before retyping. He recognises, he says, that a major contributory factor in the appeal being one day out of time was that he was acting in deference to the Tribunal by ensuring that all his correspondence was typed and properly presented.
This point does not amount to a satisfactory reason excusing the delay in the sending of the Notice of Appeal. There is no reason at all why a Notice of Appeal should not be sent in manuscript; or, if it has been typed, sent with manuscript amendments made to it. It would have been quite possible, and sensible, for Mr Hindhaugh to send his Notice of Appeal direct to the Tribunal. To send a copy of it to his father at that late stage and ask his father to submit to the Tribunal a retyped version of the Notice of Appeal; was not a sensible course for him to adopt.
His fourth point relies on what he describes as the failure of the Royal Mail to discharge their obligations and responsibilities for the delivery of post. The facts stated by Mr Hindhaugh in his submissions are that his father posted the Notice of Appeal, just before noon on Sunday 8th August, in time for the collection at 12.15 am. His father checked before posting the envelope that the collection had not been taken and two hours later made a second check and ensured by that time the postbox had been cleared. He says that the Royal Mail have confirmed that mail posted by the Sunday collection in Bexhill should normally be delivered in London the following day. This Notice of Appeal was not delivered until two days later, that is on the Tuesday 10th August. He therefore submits that everything was done by his father within his power to ensure that his Notice of Appeal would reach the Registrar in the course of post on the 42nd day of the time period. It was not anticipated by him that the Notice of Appeal would take two days to travel less than 70 miles from Bexhill to London.
The difficulty with this point is that Mr Hindhaugh left it right to the last moment to post the letter through his father. He ran the risk that the Royal Mail would not be able to do what they normally do, which is to deliver a letter posted on Sunday on the following day. The relevant Royal Mail publicity documents do not guarantee that a Sunday post will ensure Monday delivery. It is pointed out that the letter which is not posted by the last post on Saturday can still get there by Monday. There is a reminder that you must not leave it too late to post your Sunday letters, the collection normally being at 12 or in the early afternoon. The position is that, when the letter was posted by Mr Hindhaugh's father on Sunday, it would normally have arrived on the Monday, but not necessarily. By leaving the posting of the Notice of Appeal until the day before the last day Mr Hindhaugh, through his father, was running the risk that it would not arrive in time. This is a matter not of blaming the Royal Mail but of blaming Mr Hindhaugh and his father for leaving it until the very last day before sending the Notice of Appeal.
Mr Hindhaugh points, fifthly, to a matter which is irrelevant. That is what he says is the attitude of the Respondent. The Respondent Council has taken the point in its submissions that too much expense has already been incurred in investigating and hearing Mr Hindhaugh's allegations and that he should not have a further opportunity to prolong the matter. Mr Hindhaugh makes observations about his case and he repeats his complaints against the Council.
Those matters are not relevant to the question of extending time. They might be relevant points to make on the appeal but, as I have mentioned at the beginning of this judgment, the relevant test in deciding whether to grant an extension is whether a good reason has been shown for not complying with the time limit. The attitude of the Respondent is irrelevant.
I also place very little weight on the sixth, and final point, made by Mr Hindhaugh in regard to the merits of his case. He says that, if the case is allowed to go forward to a substantive appeal, he wishes to argue that the Industrial Tribunal took an erroneous view of the evidence and reached an unreasonable conclusion on the facts. He repeats his complaints of Sex Discrimination and the detriment he has suffered.
If he had got his appeal in in time he could have made those points on the appeal. They are of little relevance to the decision whether a good reason has been shown for the delay in the appeal. One would have thought that the stronger he thought his appeal was, the more sure he would have been to make certain that the Notice of Appeal was delivered well within the 42 days. There is no explanation in Mr Hindhaugh's papers as to why he did not get down at an earlier stage to the preparation of the Notice of Appeal in order to send it, either direct to the Employment Appeal Tribunal, or if he was going to send it to his father, by sending it to him in plenty of time to post it before the penultimate day for lodging a Notice of Appeal.
Taking into account all those points, the comments made by Mr Cook on the submissions, and the points made in the District Council's own outline submissions, I dismiss this appeal.