United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M PANESAR (of Counsel) MR A K JHA Principal Legal Officer Commission for Racial Equality Elliott House 10/12 Allington Street London SW1E 5EH
For the Respondents	MR R LEWIS (Solicitor) Bindman & Partners 275 Gray's Inn Road London WC1X 8QF


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is an appeal against the Registrar's refusal to extend time for a Notice of Appeal. The Industrial Tribunal's decision against which the appeal is to be launched followed a hearing over some 10 days in October 1997 and March 1998. It was a race discrimination complaint brought by Mr Aziz against Bethnal Green City Challenge Company Limited. The Respondents were represented by a solicitor, the Applicant was represented by Mr Panesar of Counsel. The claim was dismissed and the Applicant was ordered to contribute towards the Respondents' wasted costs, consequent upon a postponement of the proceedings on 6 October 1997 in the sum of £250.

The decision was sent to the parties in March of 1998. Looking at the bottom of the decision, which is filled in in handwriting to show the precise date when it was sent to the parties and entered into the register, the handwriting is unclear. It could either be 24 March 1998 or 27 March 1998. I do not think there is any other potential candidate. There is no doubt that the Commission for Racial Equality received this decision on 26 March 1998 and there is a receipt stamp on the face of the document. That shows, as it seems to me, that the document must have been sent to the parties on 24 March 1998 and therefore the time for appealing was 42 days from that date. The Notice of Appeal was received by this Court more than 42 days after the 24 March. Had the date been 27 March, the Notice of Appeal would have been within time.

On that basis, Mr Panesar submits that if the handwriting was sufficiently unclear then I could probably exercise my discretion to extend time in this case. He accepts that if attention had been paid to the date stamp, it would have been possible to detect that it must have been the 24th and not the 27th but he invites me to the view that it would be reasonable for the Appellant's representatives to concentrate on the date when the decision was sent to the parties rather than the date when it was received because the 42 day time period dates from the former and not the latter and that having talked themselves, so to speak, into a frame of mind that the decision was sent to the parties on 27 March, it is not surprising that the date stamp showing the date of receipt on the front of the decision of 26 March was overlooked. This is not a case, he says, where it was entirely the fault of the Industrial Tribunal, it was also partially the fault of the CRE and the Appellant's advisers but equally, it was not wholly their fault either. It was a combination of blame if blame is to be found.

In support of his argument, Mr Panesar also indicated that the decision of the Industrial Tribunal causes come concern, not just to the individual concerned but some wider concern as to the whole approach that they have taken to the way they should look at a race discrimination complaint, and in particular the way that they should weigh the evidence of the respective parties. They appear to have concentrated entirely on demeanour of the witnesses in arriving at their decision on credibility and the dangers of doing so in a race discrimination case are obvious, let alone the undesirability of them placing reliance on demeanour rather than on more obvious matters which go to credibility, namely consistency and the other factors which are traditionally taken into account.

On behalf of the Respondent to this appeal, Mr Lewis, I think rightly, makes the point that the more important or the more obvious the mistake made by the Tribunal, the quicker the representatives should be acting. He points out that there is one overriding rule of practice which is that appeals should be put in promptly without taking any risks and leaving matters to the last minute, because as he put it "anything can happen". Postal service delays and so forth.

I have found this an extremely difficult case to reach an adjudication on. I have had regard to the guidelines set out in the Abdelgefar decision, to which my attention was drawn by both parties. The Employment Appeal Tribunal takes what might be described as a vary hard line as to the need for appeals to be presented in time and it was I think because of that, that in the Abdelgefar case it was said that it would be likely to be only in a rare and exceptional case that time should be extended. I have to say that whilst I am fully satisfied that I have been provided with an honest and full explanation for the delay in this case, I cannot say that it excuses the delay so that I ought to extend time. I weigh the various factors, I am troubled by the decision itself and the part in particular in relation to demeanour, to which I have referred but on balance I am not able to say that the merits of the notice of appeal can be ascertained sufficiently clearly to enable me to give much weight, if any, to that fact. It is therefore with somewhat heavy heart that I must dismiss this appeal.