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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Estephane v Wellcome Foundation Ltd [1995] UKEAT 490_95_0111 (1 November 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/490_95_0111.html
Cite as: [1995] UKEAT 490_95_0111, [1995] UKEAT 490_95_111
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
(As in Chambers)
JUDGMENT
Revised
APPEARANCES
For the Appellant APPELLANT IN PERSON
MR JUSTICE MUMMERY (PRESIDENT): On 1 June 1995 the Registrar refused to grant an extension of time applied for by Mr Desmond Estephane in his proceedings against the Wellcome Foundation. Mr Estephane informed the Registrar in his letter of 6 June that he wished to appeal to the judge against the decision refusing him an extension. Mr Estephane conducted his appeal in person. He has clearly explained the reasons why he is dissatisfied with the order by the Registrar and why he is also dissatisfied with the unanimous decision of the Tribunal that he was unfairly dismissed and was not subject to racial discrimination.
The only question on the appeal is whether this is one of those exceptional cases where an extension of time for appealing should be granted. The rules are in The Employment Appeal Tribunal Rules 1993, which provide, as did the 1980 rules that preceded them, that an appeal must be instituted by serving on the Appeal Tribunal a Notice of Appeal within 42 days from the date on which the extended written reasons for the decision were sent to the Appellant. The Tribunal has a discretion under Rule 37 to extend the time, but on authority time should only be extended if the explanation for delay by the Appellant, amounts to a good excuse for not bringing the appeal in time, and if, in all the circumstances, the exceptional step of granting an extension is justified.
The position in this case is that Mr Estephane started his proceedings against the Wellcome Foundation as long ago as April 1992. He complained that he had been unfairly dismissed; had been subject to racial discrimination, and was denied the right to become a Union member, after applying for Union membership. The case was contested at an 8-day hearing held at London (South) between 16 and 26 November 1992. Mr Estephane conducted the case in person against Counsel, who represented the Foundation. The Tribunal set out their reasons in a 14-page decision sent to the parties on 26 February 1993. Under the 1980 Rules, which were then in force, the time for appealing the 42-day period from appealing ran from the date on which full written reasons were sent to Mr Estephane. He did not appeal within that time. The Notice of Appeal was not served on the Appeal Tribunal until 1 May 1995. According to the calculations made in the office, the appeal is 747 days late.
Mr Estephane explained during the course of the appeal, the various reasons why he did not appeal within the 42 days. He said that he was not aware of the legal procedure and time limits for appealing. He had been refused Legal Aid. He consulted some solicitors shortly after he had been notified of the decision and thought that they would lodge a Notice of Appeal, but he discovered that they had not, as he was not awarded Legal Aid. He did not know that a proper form existed for making a Notice of Appeal. He expected to get some form of help from his union, but did not. He was in difficulties in putting in an appeal because it had been explained to him by various lawyers that he needed a point of law on which to appeal, but he did not know what a point of law was. He is convinced that his rights have been violated; that the Tribunal, which decided his complaint and rejected it, misunderstood and wrongly decided the issues of fact and law; and that the decision given is a perverted one. He feels aggrieved all round, because, since he lost his job with the Wellcome Foundation, he has not been able to get another job, and he is convinced that he is being given bad references.
That summaries the various points Mr Estephane made. There is more detail about this in a number of places in the papers. There are explanations in the application for an extension of time. He refers to his application to be a member of his Union, MSF. That had been denied after he had applied for legal representation. He refers to a number of documents in a separate exhibit bundle, which shows that he was seeking legal advice and representation. He expresses his view that an extension of time for appealing should be granted, as he had been denied the right to rejoin a union; and that resulted in him having no time allocated to prepare for disciplinary meetings at Wellcome, or for legal representation in the Industrial Tribunal. He is not qualified and had to do the case himself. He believes that, if he had been represented professionally, his case would not have been concluded on the balance of probability. He makes various other points in support of his application for an extension of time.
The solicitors to the Wellcome Foundation, Reynolds Porter Chamberlain, made it clear to the Tribunal in their letter of 11 May 1995, that they strenuously opposed the application. They set out in that letter the relevant legal principles and submit that, when applied to the facts of this case, the application for leave to appeal out of time should be dismissed.
Whilst Mr Estephane was making his submissions, I have examined the bundle of exhibits, which show that, at various times since the decision, Mr Estephane has consulted firms of solicitors. On several occasions Counsel's advice has been obtained on the question of an appeal. That advice was pessimistic, in view of the long delay since the time for appealing expired and the difficulties of finding a point of law. Mr Estephane has also sought advice from Legal Advice Centres, such as the Mary Ward Legal and Financial Advice Centre. I have been referred to the letter that they wrote to Mr Estephane, in February this year, on the difficulties which he would face in trying to appeal now.
Those letters show that over the period since the decision was notified to Mr Estephane, he has been attempting to obtain legal advice with a view to supporting an appeal. So far as I have been able to gather from the papers, he has not received a legal opinion which would support an appeal. That in itself probably explains why no appeal was brought in the long period since the decision was notified to him.
In all those circumstances, I have to ask whether the explanations which Mr Estephane has given for not appealing in time, amount to a good excuse for failure to observe the time limit? In my view, they do not amount to a good excuse. Even though he was trying to obtain legal advice and get Legal Aid with a view to bringing an appeal, that alone cannot excuse a failure to put in a Notice of Appeal. It would have been possible for him personally, if the lawyers had not been willing to do it, to contact the Appeal Tribunal, enquire about the procedure for appealing, obtain a copy of the form and fill it in. It is only a one page document. Only certain outline details have to be included in it. In my view, Mr Estephane would have been capable of doing this. He conducted his own hearing for 8 days before the Industrial Tribunal. It would have been far less exacting than that for him to complete the Notice of Appeal. That was not done. In my judgment, there is nothing in this case which would justify me taking the exceptional step of extending the time for appealing, so long after the expiration of the time laid down by the rule. In my judgment, the Registrar was right to refuse to extend the time. I dismiss the appeal.