United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 78_94_2407

Appeal No. PA/78/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24 July 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

(IN CHAMBERS)

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MRS J A SNELLING          APPELLANT

TESCO STORES LIMITED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANT OR THE RESPONDENTS

For the Respondents


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the refusal of the Registrar to extend the time for serving a Notice of Appeal.

The Registrar made the Order on 13 January 1995 after considering the letter of application by Mrs Snelling, dated 5 March 1994, and a number of later letters sent by Mrs Snelling and by the Respondents to the appeal, Tesco Stores Ltd.

The reason why Mrs Snelling had to make the application was that she was one day out of time in serving her Notice of Appeal. The hearing of her case on a preliminary issue of time limits had taken place at London (North) on 6 September 1993. The Tribunal unanimously decided that it did not have jurisdiction to consider her case, because she had not brought the proceedings within the time limits and they did not consider that it was just and equitable to allow the application to proceed.

The Extended Reasons for that decision were sent to the parties on 13 December 1993. The Notice of Appeal is in the form of a letter which was dated 25 January 1994 and is stamped as having been received on that date. The final day for serving the Notice of Appeal was 24 January 1994.

The rules on time limits for appealing are contained in Rule 3 of The Employment Appeal Tribunal Rules 1993. That provides in Rule 3(2):

"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 ..."

There is a discretion to extend the time. Rule 37 provides:

"(1) The time prescribed by these Rules ... for doing any act may be extended ..."

The decided cases on the exercise of the discretion and the terms of the Practice Direction issued by this Tribunal, make it clear that the discretion is only exercised in rare cases.

The Appellant, who is out of time, must provide a full explanation for not complying with the time limits. The Tribunal must be satisfied that the explanation is a good excuse for not complying with the time limits. The Tribunal has to be satisfied that, in all the circumstances of the case, the granting of an extension is justified; that is rarely the case.

Mrs Snelling, when she was notified that the Registrar had refused to extend the time, said that she wished to appeal. She wrote a letter to the Tribunal dated 14 February 1995 referring to her medical condition. She enclosed a letter from a doctor at the Camberley Health Centre, confirming that Mrs Snelling had been suffering from a gynaecological complaint since July 1994 and had suffered ill-health since that time. It said:

"... Her condition is still ongoing and she has found it difficult to prepare her case and make a final submission."

She had made it clear, in the letter which accompanied the medical certificate, that she wanted an extension of time for making other submissions in relation to the decision of the Registrar.

The position today is that Mrs Snelling has not attended. The Tribunal have also received notification from the Respondents, Tesco Stores Ltd, that they do not intend to appear at today's hearing. They have sent a detailed Skeleton Argument in support of their contentions that the appeal against the Registrar's Order should be dismissed. Those Skeleton Arguments were sent under cover of a fax on 22 July saying, through their Solicitors, Howes Percival:

"Further to our conversation, we confirm we will not be attending the Hearing on Wednesday when the Tribunal will consider the Disposal of this matter. As agreed, we are enclosing an Argument which supports our contention that the matter should be disposed of and which the Judge might wish to consider."

Mrs Snelling has asked for the hearing today to be adjourned on a number of occasions. That explains the length of time which has passed since the Registrar's order on 13 January last year and the hearing of the appeal against that today, 24 July 1996.

In repeated letters to the Tribunal Mrs Snelling has said that she is not in a fit state of health to attend a hearing. She has referred to a number of medical certificates which she says make it clear that none of these matters can be dealt with. She says that the present position is that the appeal cannot be dealt with this year. It had been made clear to her by her doctor that the case can only be dealt with when she is well again, next year. She then says this, in her most recent letter of 1 July:

"... In view of the fact that you have had clear medical evidence sent to you in a medical certificate sent by my doctor I fail to see why you have listed the case.

I would point out to you that my doctor is the only person able currently to provide you with any evidence. I wish to make a strong complaint about continuous letters being sent to distress me claiming that the case can be prepared and ignoring the medical certificates which I have sent. I have now at substantial cost had to register the medical certificate at least 12 times and each time my correspondence is completely ignored. Should you have a hearing on 24 July you must pay the costs of the respondents. I will not pay any costs because you are and have been for many months fully aware that I am too sick to attend a hearing or have this case prepared in any way. I strongly suggest that you cancel the hearing or pay costs.

Furthermore I have made it clear to you that while I am sick I do not want any more letters making attempts to list my case. I find these letters to be unacceptable and I have made it clear that if you needed further information you should have written to the doctor and not to me. ..."

Mrs Snelling completes her letter about her illness by saying that she had asked us to defer the hearing until next year.

I have considered Mrs Snelling's request for an adjournment. It had been pointed out to her in correspondence that, if she is unable to attend personally on account of ill-health, it would be in order for her to be represented. It has been mentioned to her that she could seek advice from a Citizens Advice Bureau or a friend about attending on her behalf.

It was also pointed out to her that, if she did not attend and no one represented her, the case could be dealt with in her absence.

This Tribunal is sorry to hear of Mrs Snelling's ill-health, but the point has come when a decision must be made on this case. Mrs Snelling has had ample opportunity to make all her representations in correspondence. It is now for me to decide whether, some 18 months after the Tribunal refused to extend time, the Registrar's order should stand or should be reversed. In my judgment, the position is that the Registrar's decision should be upheld and I should dismiss the appeal.

The written submissions by Tesco Stores Ltd correctly identify the relevant rules of the Employment Appeal Tribunal and the relevant terms of the Practice Direction. They submit that Mrs Snelling has not produced a good excuse for the delay in submitting her Notice of Appeal. The only excuse which she has given in correspondence is that she was unable to complete the documents in time on the last day, 24 January 1994, because she was suffering from flu. There is no explanation in the letters as to why it was left to the very end of the time limit for appealing to fill in and send the forms.

In my view, the arguments set out in Tesco's written submissions are correct. They are correct in submitting that Mrs Snelling's explanation is not good enough for the purposes of granting her an extension of time. She may think that the period of the delay is short; it is only one day out of time, but it has been made clear in earlier cases that even one day out of time is out of time. An extension can only be granted if a good excuse is produced for non-compliance with the strict time limits. The illness is not, in my view, a good excuse.

I have to pay regard to the time which had passed before 24 January, which was the date of the illness. No medical certificate or medical evidence has been produced about Mrs Snelling's condition at that time. In my view, she has failed to satisfy the Registrar and has failed to satisfy me that the exceptional step of extending the time should be taken.

For all those reasons the appeal against the Registrar's order is dismissed.