United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 234_95_0607

Appeal No. PA/234/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6th July 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

(IN CHAMBERS)

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MRS S WOODCOCK          APPELLANT

CORNERSTONE ESTATE AGENTS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR'S ORDER

Revised


 


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APPEARANCES

THE APPELLANT IN PERSON

NO APPEARANCE BY OR ON BEHALF

OF THE RESPONDENTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mrs Susan Woodcock against the order made by the Registrar of the Employment Appeal Tribunal on 20th April 1995.

The Registrar refused to grant an extension of time to Mrs Woodcock to appeal against the decision of the Industrial Tribunal.

As appears from the order of 11th April 1995, that decision was reached after letters had been considered from both Mrs Woodcock, as the appellant, and from the respondents, Cornerstone Estate Agents.

In order to decide whether there are any grounds for appealing against the Registrar's Order, it is necessary to consider the relevant dates and the explanation given by Mrs Woodcock for failure to comply with the time limits. Finally, it will be necessary to consider the written submissions of the solicitors for the respondents.

The case has a long history. I fully appreciate that it has involved a great deal of anxiety and stress for Mrs Woodcock

Her claim of unfair dismissal was first considered by the Industrial Tribunal at Leeds on 4th March 1994. The Tribunal notified the decision on 29th March 1994. They unanimously decided to dismiss Mrs Woodcock's claim. There was another hearing in the Industrial Tribunal at Leeds on 31st May 1994. That was a hearing on an application by Mrs Woodcock for a review under Rule 11 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. The matter was re-heard. In the extended reasons notified to the parties on 23rd June 1994, the Tribunal unanimously decided to revoke the earlier decision and to re-hear Mrs Woodcock's application. On that re-hearing they unanimously found that she had been unfairly dismissed, but in the circumstances any compensation awarded to her should be reduced to 15%. The parties agreed to adjourn the question of remedies to another date.

That other date arrived. The hearing took place at Leeds on 20th October 1994. The hearing took place with a solicitor representing Mrs Woodcock. Cornerstone Estate Agents did not attend. They sent in written representations which were taken into account by the Tribunal in reaching their decision.

The Tribunal notified extended reasons on 7th November 1994 for their decision that Cornerstone should pay to Mrs Woodcock the sum of £868.00 compensation. The extended reasons show how 85% was deducted from her compensatory award pursuant to the decision on contributory fault at the earlier hearing.

Unfortunately, the appeal against that decision was not received in the Employment Appeal Tribunal until 24th February 1995, long after the expiration of 42 days for appealing laid down in the Employment Appeal Tribunal Rules 1993. Rule 3(2) says:

"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, ..."

The result of applying that time limit is that the time for appealing expired on 18th or 19th December 1994.

In her appeal letter Mrs Woodcock apologised for the delay in sending in the documents. She said that she had had great difficulty in obtaining the three decisions. She pointed out in the letter that at the preliminary hearing she was not represented. After losing her case she sought a review of the decision and had a solicitor to represent her. After she had engaged solicitors all the correspondence was sent to her solicitor by the Tribunal and by Cornerstone. She said that all this information was still held by her solicitor. She concluded the letter by saying:

"As the Employment Appeals Tribunal is the only body of which has the power to extend the time of appeal in certain cases, I would ask that the Tribunal give consideration to my case."

The Notice of Appeal which was prepared by Mrs Woodcock, signed by her and dated 21st February 1995.

I explained to Mrs Woodcock, who has represented herself today, that strict views are taken about the time limits for appealing. It would be necessary for her to persuade me that there was a good excuse for not complying with the time limits in this case. She explained how she was out of the country in Australia. She had gone there as she suffered from health problems. She was there from 3rd November 1994. She departed before the extended reasons were notified. She did not return until 30th December 1994, by which time the time limit had expired.

She explained that, as far as she was concerned, she had left the matter in the hands of her solicitors. She had informed the solicitor that she wished to appeal. She had made attempts to contact the solicitor while she was in Australia. But she had been unable to achieve any response.

The essence of Mrs Woodcock's explanation for the failure to comply with the time limits is that she was away in Australia and could not do anything herself. She had left it in the hands of her solicitor who had failed to deal with the matter.

She referred to two letters relevant to this explanation. The first is a letter in her own handwriting sent to Mr Gallagher, the solicitor in the firm of Craig & Co who was dealing with the matter, on 29th October 1994, i.e. between the date of the hearing on remedies in the Industrial Tribunal and before the Tribunal gave their extended reasons for the calculation of the figure of £868.00. She referred in the letter to the last meeting at the remedies hearing. She said:

"... I was disappointed as I know you were at the end result. I feel that there is something drastically wrong with the way they came to the calculation of 15%. I cannot see how the chairman at the previous hearing could say to Mr Chary `I'm sure you will be able to find Mrs Woodcock a place within one of your 365 offices', then accept the fact that Mr Chary did not attempt to contact you or turn up at the hearing, and I fail to see how they could say that my conduct before dismissal added to my being dismissed."

She then said on the second page:

"When the results comes through I hope that I can make an appeal against their decision of compensation awarded."

She explained that she was going to be away and added this on the final page of the letter:

"As it will be late in the year when I return, should there be any need to return to another hearing I would like to ask that it now be made in the new year. I am still having a lot of dental treatment and have several other major problems which need sorting out.

I hope that you will continue to fight on my behalf during my absence and thank you for what you have done so far."

A letter was sent by Mr Gallagher to Mrs Woodcock dated 16th December 1994. It arrived on 19th December and was faxed to Australia by Mrs Woodcocks' daughter. She tried to get in touch unsuccessfully with the solicitors while she was in Australia. That letter said that Mr Gallagher had an opportunity to consider the decisions of the Industrial Tribunal. It referred to the fact that the decision sent out on 7th November 1994 stated that, in the view of the Tribunal, it was not reasonable to order reinstatement or re-engagement, because of the findings of contributory fault in the earlier decision.

He referred to the discretion of the Tribunal on reinstatement or re-engagement, and to the finding of contributory fault. He stated that he took note of what Mrs Woodcock said regarding the Chairman's comments, but said:

"... essentially his comments did not form part of the decision and we could only appeal against what is in the decision and what is bad law. On the face of it there is no misunderstanding of the law in either of the decisions provided by the Tribunal and it is upon that basis that I must regrettably inform you that I do not believe you have any grounds for appeal."

He said that he had discussed the legal aspects of the case with another colleague in another firm who reached the same conclusion as he had. He finished his letter saying:

"I trust this clarifies the position for you and sincerely hope that you will be able to put your unfortunate experience at Cornerstone behind you. I would appreciate it if you could inform me whether or not you have in fact received the sum of £868 from Cornerstone as was ordered on the 20th October 1994."

In her helpful submission Mrs Woodcock explained in detail how the time limit was passed without service of a Notice of Appeal. She set out a list of the dates and the various things which happened or did not happen, between 20th October 1994 and the date when she served the Notice of Appeal. She appreciates that the time for appealing should be 42 days, but, for circumstances beyond her control, she was unable to comply with that. On 20th October 1994 she informed her solicitor she was not happy about the percentage of compensation she was awarded, and that she wanted to make an appeal against the decision. The solicitor said he would contact her during the next day to discuss the matter, but he could not make an appeal until he had received the decision. The solicitor neglected to contact her. When trying to make contact with him he was never there. Even though she left messages to contact her, he neglected to do so.

On 23rd October 1994 she had health problems. She was advised that she needed a break. She took the advice and the family paid for her to go to Australia and stay with friends for eight weeks. On 29th October she tried to get in touch with the solicitor. She left a message with the receptionist and wrote the letter confirming that she was going away.

She left on 3rd November 1994, and returned on 30th December 1994. She tried to contact Mr Gallagher while she was in Australia, to find out what he had done. She was not successful in getting in touch with him.

On 19th December 1994 she received the letter from Mr Gallagher. If had she known her solicitor was going to close the case she would certainly not have left the country, and would have made all attempts to serve an appeal in within the 42 day time limit.

On receiving the faxed letter of 16th December 1994, she tried to contact Mr Gallagher. She was unsuccessful. She telephoned the Industrial Tribunal office in Leeds informing them of the situation and that she was in Australia. They informed her that she would have to contact her solicitor. He would have to deal with it.

On returning to the United Kingdom, on 30th December 1994, she found herself in the middle of the Christmas/New Year holiday period. She tried to contact various departments, but everybody was on holiday.

On 12th January 1995 she managed to get in touch with someone at the Tribunal office. They advised her that she should get legal advice. She made contact with the Law Society. She obtained information from the Employment Appeal Tribunal. She was told that she would require in full the written details from the Industrial Tribunal office. She said that there were difficulties with the staff in the Leeds office, when she requested details.

On 7th February 1995 Mrs Woodcock made contact with the Employment Appeal Tribunal. She was in contact with them before the Notice of Appeal was actually received on 24th February 1995. She appreciates the time which has gone past and says that she spent a lot of time after her return from Australia trying to get information about how to serve a late appeal. She believes that it was bad practice on the part of her solicitor not to contact her before the date of appeal had expired. He should have discussed the possibilities of appeal with her, as he said he would. It was unfortunate that she became ill, and that her solicitor had neglected to discuss the appeal with her. If neither of those things had occurred she would not be in the unfortunate situation in which she is today.

That is a full explanation of the reasons why this appeal is late. I do not doubt the accuracy of the explanation, though I should point out that I have not heard any explanation from Mr Gallagher as to why no appeal was put in by him while Mrs Woodcock was in Australia.

The essential question is whether the explanation given by Mrs Woodcock is a good excuse for not serving the appeal on time. This is a difficult case. I have to give due consideration to the opposition expressed in the written representations of Cornerstone in a letter from their solicitors dated 26th June 1995. They oppose the application for time to be extended. They say that the reason for it not being served in time was that according to Mrs Woodcock, she was not aware of the Employment Appeal Tribunal, or aware that the Tribunal had power to extend the time limit for putting in a Notice of Appeal. They point out that she was represented by a solicitor at the hearing in October 1994, and that, as she has made clear in her own letter, she informed her solicitor that she wished to appeal against the decision on compensation, and the refusal of re-engagement and reinstatement. They submit that she should have been aware of the rules of procedure. Having had the benefit of legal advice, she cannot now blame the failure of her advisers for her situation. Despite her knowledge that the time limit had expired, she took no further advice until she contacted the Law Society. She took no steps to serve a Notice of Appeal until 20th February 1995.

In those circumstances the submission by Cornerstone is that the reasons given by Mrs Woodcock for not complying with the time limit are not good reasons excusing the delay. She has to show good reasons why the application should succeed. She has not shown that. The Registrar's decision should be upheld.

I have reached the conclusion that the Registrar reached the right decision in this case in refusing to extend the time.

The time limit is clear in the rules. It is 42 days. That time limit is only extended in rare or exceptional cases. In order to extend it the Tribunal has to be satisfied that there is not just an explanation for the delay, but a good excuse for not complying with the time limit.

In this case the main excuse put forward by Mrs Woodcock is that her solicitors did not do what she had asked them to do before she went to Australia.

Unfortunately, for Mrs Woodcock, when a solicitor represents a party, the party who is represented has to take the consequences of the representative's actions or inactions. In this case the failure of the solicitor relied on by Mrs Woodcock does not provide a good excuse for extending the time. Mrs Woodcock may have grounds for making a claim against her solicitors for failure to carry out her instructions. She may have grounds for making a claim or complaint to the Law Society about what has happened. I express no view on how good her claim or complaint would be, because I have not heard Mr Gallagher's side of the story. I have seen certain documents from which it does appear that Mrs Woodcock made clear to Mr Gallagher that she was not satisfied with the decision on compensation, that she was going to be away and that she would wish to appeal against it. I dismiss her appeal, and say that, if she wishes to pursue this matter further, she must take it up with her solicitors and the Law Society.

The arguments put forward on behalf of Cornerstone are good legal arguments for upholding the Registrar's decision and dismissing this appeal.