United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS J BAKER (Representative)
For the Respondents	MR DAVID HUGHES (of Counsel) Messrs Osborne Clarke Solicitors Hillgate House 26 Old Bailey London EC4M 7HS


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the order of the learned Registrar who refused to extend time for the lodging of a Notice of Appeal. The Notice of Appeal was received by the Employment Appeal Tribunal one day out of time. The appeal concerns a complaint which the appellant, Mr Baker, has commenced in the Industrial Tribunal against LTS Rail Limited, his former employers. His contention is that he is entitled to a voluntary redundancy payment and he also alleges that he was constructively dismissed. Those proceedings are contested by LTS Rail Limited.

During the discovery process the applicant sent to LTS photocopies of three E:mails. The identity of the person who had downloaded those E:mails from the computer system had been blanked out. LTS made an application in writing to the Industrial Tribunal asking for an order for inspection of the originals of the E:mails which had been in Mr Baker's custody, possession or power. In response to that application the Industrial Tribunal made an order as follows on 13th February 1998:

"Following an application by the Respondent, a Chairman of the Tribunals has ORDERED that on reasonable notice you shall on or before 14 days of the date of this Order produce for inspection at Cliffdene, 9 Cliff Road, Harwick, Essex CO12 3PP such of the documents specified in the Schedule below as are in your possession or custody or power and permit copies to be taken."

The Schedule then identifies the documents in this way:

"The original documents requested in the Respondent's Representative's Letter dated 4th February 1998 (Copy enclosed)."

On 26th February the applicant's representative wrote to the Industrial Tribunal with regard to that order asking for it to be set aside:

"... as we are not able to comply with it. The reason for this is that we do not hold or have access to the original e'mail documents.

As the e'mails in question were created and sent within the Respondents' own computer system, we suggest that they are in a better position than we are to provide the original e'mails. We have written to the Respondents notifying them of our inability to comply and requesting the original documents from them. We feel that there should not be a problem as an e'mail cannot be altered, once it has been sent electronically."

Despite that letter, the Chairman wrote as follows:

"A Chairman has asked me to write to you with the following information.

He does not consider the Applicant has shown sufficient reason for it not to comply with the Order dated 13.02.98.

Unless the Applicant does so within 7 days of the date of this letter his claim may be Struck Out. That a person does not wish to be named is not a good reason."

It should be noted that that letter dated 12th March 1998 does not deal with the request that the order should be set aside. Nor does it purport to deal with the other explanations given in the letter of 26th February to which I have referred.

It would appear that following the 12th March letter a further letter was sent to the Industrial Tribunal. It may have been sent on 19th March because it is referred to in a letter to the Tribunal dated 25th April, but in paragraph 4 of the Striking Out Order which was made by the Industrial Tribunal in this case they say that:

"Insufficient reasons have been provided in answer to that letter,"

from which I infer that some reason were advanced in a written response to that letter.

The Striking Out Order was made on 27th March and was sent to the parties on 30th March 1998. Paragraph 5 of the Striking Out Order and the reasons for it says:

"The Applicant has had access to the original document that should have been made available for inspection. The Order was not complied with as the Applicant allegedly wished to protect the source of this Original document. This is not a meritorious or sufficient reason for non-compliance."

It is to be noted that paragraph 5 does not deal with the other reasons advanced in the letter of 12th February to which I have referred.

On 25th April a letter was sent to the Industrial Tribunal by the applicant's representative complaining about the Striking Out Order. In a letter dated 18th May the complaint was formulated in this way:

"On receiving the Striking Out Order, the Applicant's representative telephoned the tribunal to ask whether a) there is a specific procedure for appealing against a decision to strike out an Originating Application, b) if so, how to appeal, and c) what the time limit for doing so was. She was told quite categorically by a female, that there was no procedure and therefore no time limit. This was confirmed by another female she consulted, in the background. Both women advised the Applicant's representative not to appeal to the Employment Appeal Tribunal, at this stage, although they gave the address for it.

As this information agreed with the Tribunal's own rules of procedure (there is no mention of appealing against a striking out order), the Applicant and his representatives could not possibly have known that there was 14 days in which to appeal. They did everything possible to find out how to appeal and when to appeal and believed they had the correct information.

To say that Rule 11 applies and gives 14 days in which to appeal is extracting a meaning from Rule 11(4) which could not have been intended by the drafters of the rule."

It will be apparent from that extract that the writer of that letter was confused as to the difference between an application to the tribunal to review its previous decision and an appeal. The letter continued thus:

"In addition to the points already made, that the information about review procedure and review time limits was not available from either tribunal staff nor the tribunal rules, we wish to make the point that the period of lateness was only 11 days, it would be a severe punishment indeed - to deny Mr Baker a hearing because of a mere 11 days.

To deny Mr Baker his hearing merely because his Application for Review was only 11 days late would also contravene the philosophy that the Tribunal system should not be rigid.

We also point out that a) since the Striking Out Order was based on facts which were untrue and b) since the decision was made without allowing the Applicant an opportunity to explain why it should not be made, (Rule 4(7) was not complied with), the Striking Out Order is invalid and Rule 11(4) cannot apply to a Striking Out Order that is not valid. Rule 4(7) "... a tribunal shall not so strike out or direct unless it has sent notice to the party who has not complied with the requirement giving him an opportunity to show cause why the tribunal should not do so." May we remind the tribunal that no such notice was ever sent to the Applicant or his representative.

If the meaning of the word 'hearing' is extended to include a decision to strike out an originating application, then the decision should have been in public, in compliance with Rule 8(2) of the IT Regulations 1993, this does not appear to have been done, since the Applicant was not given the opportunity to attend."

That letter was written in order to explain why the application for a review had not been made within the 14 day time period. The Chairman considered that application but refused to review the decision as the application for a review had been made out of time. It said:

"The Chairman of the Tribunal sees no reason for extending the time limit for applying for review and your application for review is refused as being out of time."

The letter of 18th May, to which I have referred, followed that decision and it was responded to by the Industrial Tribunal on 1st June 1998 where they acknowledged receipt of it, noted its contents, but drew to the applicant's attention the order of 6th May 1998 refusing to extend time for the review.

It is to be noted that the Industrial Tribunal do not dispute the account of the telephone conversations to which reference is made in the third paragraph of the letter of 18th May to which I have referred.

The letter from the Industrial Tribunal notifying them of the end of the Industrial Tribunal procedure was on 6th May and it was very shortly thereafter that the Notice of Appeal was lodged here, namely 12th May 1998.

Thus it is that the appellant contends before me that time should be extended because they have provided what I should regard as a valid excuse for not having lodged the appeal within time. They say they were not given the usual documentation which accompanies a decision of an Industrial Tribunal as opposed to a Striking Out Order. They say that they attempted to find out what their position was by pursuing enquiries through the Industrial Tribunal office; that they were misled effectively by the Industrial Tribunal although no doubt quite inadvertently, and through muddle and confusion and wrong advice they have found themselves in this position.

For LTS it is submitted to me that the fact that the appeal was only one day out of time was not of itself a sufficient reason for extending time for obvious reasons; that the appellant's duty was to find out what the time limits were and cannot complain if they were misled about it; that they failed to comply with the order for inspection; that they failed to give a satisfactory reply to the tribunal's letter of 12th March and that they waited an undue amount of time after the Striking Out Order had been sent to them on 30th March before dealing with the position. Counsel on their behalf says that in accordance with the principles enunciated in Abdelghafar v United Arab Emirates case, I should dismiss this appeal.

I have come to the conclusion in the exercise of my discretion, that this is one of those rare cases where I can and should extend time. It seems to me that there is good credible evidence that the appellant and his adviser were misled inadvertently no doubt by the Industrial Tribunal staff as to what their position was, ie, that they were entitled on the basis of what they were told to pursue their remedy for a review before the Industrial Tribunal in the belief that there was no particular procedure for an appeal to the Employment Appeal Tribunal against an order striking out their claim. The fact that they were confused and also misled is something that I can and do take into account. I should also say that insofar as the merits of the matter are concerned, I have some misgivings, I have to say, about the decision of the Industrial Tribunal striking this matter out in any event without giving the parties an opportunity to make oral representations as to why it was appropriate not to strike out the case. The letters which had been sent explaining why there had been apparent non-compliance with the order for inspection included an averment that it was not possible for them to comply with it because they did not have access to the relevant information. They should have least had had the opportunity of having that part of their contention considered and if they were under a misunderstanding as Counsel suggests as to what was meant by the original documents, that all they were being required to produce was the document which they received from whatever source it was, then that could have been clarified and no doubt the position would have not led to the case being struck out.

For these reasons in the exercise of my discretion, I am of the view that the appeal should be allowed and time extended by one day so as to validate the Notice of Appeal in this case.