United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHNSON (Husband of the Appellant)
For the Respondents	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENTS


 


MR JUSTICE MORISON (PRESIDENT): There are three separate files in relation to the appeals which I must now consider: PA/348/98, PA/346/98 and PA/347/98. In relation to each file there are two appeals.

The background to these appeals can only be described as sad. Mrs Johnson had for many years been working in the National Health Service as a nurse. She was latterly a Grade G Night Sister with the Luton & Dunstable Hospital NHS Trust and was dismissed by reason of redundancy with effect from 4th December 1994. Since then the circumstances of her dismissal and her outrage at the way she has been treated has been destructive of her health and disruptive to her family. She is represented by her husband. The stress which the litigation process has had upon the family as a whole is quite apparent. As a result of the way she perceived herself to have been treated by her employers, a respectable family has been torn apart.

The history of the litigation can be briefly described and I take it from a judgment given by the Employment Appeal Tribunal on 18th February 1998.

On 1st March 1995 Mrs Johnson presented an Originating Application to the Industrial Tribunal complaining of unfair dismissal and unlawful discrimination on grounds of race and sex. After a six day hearing before an Industrial Tribunal held at Bedford, her complaint of unfair dismissal was upheld her other complaints dismissed. The written decision of the Industrial Tribunal recording its reasons was sent to the parties on 1st May 1996. The question of remedies was outstanding and came back before the same Industrial Tribunal on 30th September and 7th October 1996. The Industrial Tribunal awarded the applicant £2,526.92 by its decision with extended reasons promulgated on 11th October and corrected on 17th October 1996. The remedies decision was appealed by Notice of Appeal dated 21st November 1996 and the matter came before the Employment Appeal Tribunal at a preliminary hearing on 21st February 1997. Meanwhile, the applicant had applied for a review of the remedies decision but that application was refused by the learned Chairman in a decision dated 29th November 1996. At the preliminary hearing on 21st February 1997, the Appeal Tribunal acceded to an application by Counsel for an adjournment of the appeal pending an application for a review of the substantive decision which had been given in May 1996. That application for a review was dismissed by a decision dated 28th February 1997. On 27th November 1996 the appellant presented a second Originating Application arising out of the same matters which she had been referring to in her first application and the complaint was struck out by the Industrial Tribunal on 11th February 1997; an application for a review of the decision to strike out was dismissed on 17th March 1997.

A question then arose as to whether the hearing which was adjourned on 21st February 1997 should now go ahead and the matter came before His Honour Judge Peter Clark on 18th February 1998 and he gave leave for the appeal to proceed to a full hearing on the ground that the Industrial Tribunal may have erred in law in the way they dealt with pension payments which Mrs Johnson received after her dismissal.

The first file containing the two appeals which I must deal with is EAT/348/98 and relates to the remedies decision in October 1996. The Notice of Appeal in relation to that decision was received by the EAT on 4th February 1998. It follows therefore that the Notice of Appeal was lodged some 439 days out of time. The grounds on which Mrs Johnson relies in support of her application that time should be extended in lodging the Notice of Appeal are, as Mr Johnson on behalf of his wife suggests, that the Industrial Tribunal system had misled him as to his position and that the Counsel whom he had retained at the preliminary hearing in February 1997 had let him down together with the solicitors whom he instructed. As I understand the position, Mr Johnson has made a complaint about his lawyers' conduct to the Lord Chancellor. He suggests that in those circumstances it would be just and equitable for the Employment Appeal Tribunal to extend time. In addition to his application for an extension of time he also applied to the learned Registrar for an Order that the solicitors whom he retained should provide further and better particulars of the steps they took to instruct Counsel on his behalf and the advice that Counsel gave them. His application for an extension of time was refused by the Registrar as was the application for further and better particulars and the matter comes before me by way of an appeal from her decision.

I am satisfied having read the papers that Mr Johnson on Mrs Johnson's behalf has not provided any reasonable excuse for not filing a Notice of Appeal within time or much sooner than it has been filed in this case. As the history of the litigation demonstrates, he is not unaware of how to appeal and it is significant, in my judgment, that there was no appeal against the tribunal's decision on liability. Mr Johnson says that the original Industrial Tribunal were deceived by the employers by false evidence, and if that was so he would be entitled to make an application to the Industrial Tribunal for a review. In relation to his application for an Order for further and better particulars against his solicitors, it does not seem to me that the Employment Appeal Tribunal would have power to make any such order and in the exercise of our discretion in any event such an application would be refused. Accordingly, I see no reason for reversing the Registrar's decision in either of those two matters. I am of the view that she exercised her discretion correctly. This is not a case, when applying the principles in Abdelghafar v United Arab Emirates, for the exercise of a discretion in Mr Johnson's favour, however sympathetic I may be to his and his wife's position.

The second file relates to the refusal by the Industrial Tribunal to review the substantive decision dated 1st May 1996. As the history shows that decision was arrived at in February 1997. That file also contains an appeal against two Orders made by the Registrar. The first was a refusal by her to extend time for the appeal which was about 300 days out of time; and a refusal by her of his application for further and better particulars relating to the advice of Counsel and the relationship between the solicitors whom he had instructed and Counsel.

The reasons the appellant sought an extension time are set out in a letter from him dated 6th March 1998. It seems to me that what is said in that letter does not constitute any proper explanation for the delay in lodging a Notice of Appeal in this case. In the exercise of my discretion I refuse such an application and dismiss the appeal as I am of the view that the Registrar was entirely right. In relation to the request for further and better particulars I have nothing to add to what has already been said on that question and I will dismiss the appeal on that basis also.

The final file EAT/347/98 contains two appeals. The first is against the striking out by the Industrial Tribunal of the second Originating Application and the tribunal's refusal to review the strike out decision on 17th March 1997.

The Notice of Appeal against those decisions was filed 316 days and 282 days out of time respectively. The grounds on which the application for an extension of time was made to the Registrar was the same letter of 6th March 1998. It follows from what I have already said that in my judgment the learned Registrar was correct in refusing the application as no good reason has been put forward to explain the delay in this case. In the exercise of my discretion I dismiss the appeal. There is nothing to add to the further Order made by the Registrar refusing an application for further and better particulars because it simply repeated previous requests.

It follows therefore that the appeals are all dismissed.