United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR D A SMEDLEY (Solicitor) Walker Morris Kings Court 12 King Street Leeds LS1 2HL


 


JUDGE PETER CLARK: This is an appeal by Mr Tchoula against an Order made by the Registrar and dated 2 April 1998, refusing him an extension of time for appealing against a decision of the London (South) Industrial Tribunal, promulgated with Extended Reasons on 5 December 1997, dismissing his complaint of unlawful racial discrimination made against the Respondent, Erteco UK Ltd. It is common ground that the time for appealing against that decision expired at midnight on Friday 16 January 1998.

The first point which is taken by Mr Tchoula in this appeal is that his Notice of Appeal was faxed to the Employment Appeal Tribunal within that time limit.

On the material before me I am satisfied that he did put in his Notice of Appeal in time. There is a Notice of Appeal which is date-stamped 19 January 1998 by the EAT and another similar Notice of Appeal which is date-stamped 17 January.

When the Appellant applied for an extension of time for appealing, in response to a communication from the EAT, by a document received on 11 February 1998, he said, among other things, this:

"C) MY TELEPHONE BILL

6. My telephone bill clearly indicate that I started faxing my Application to the EAT (Fax Number 0171 273 1045) about an hour before Midnight, on Friday the 16th January 1998."

7. Hence my Appeal was received within the official limit of 42 days, and cannot possibly be rejected, it will be unreasonable and a breach of the EAT Practice Direction to do so."

Attached to that application he included a copy of a breakdown of call charges for his telephone and fax machine at home supplied by Cable and Wireless. From that document I am satisfied that at 13.30 hours on 16 January he telephoned a member of the Employment Appeal Tribunal staff, Mr Stefano Valentino, and having had a conversation with him in which the Appellant tells me, and I accept, that he was informed that he must get in his Notice of Appeal by midnight that day, the Appellant then tried the EAT fax number to make sure it was working at 13.39 hours and then, according to the breakdown, he commenced faxing at 23.17 hours to the EAT fax No. 0171 273 1045 and made a number of transmissions to that number, completing the last transmission at precisely midnight on 16 January.

The faxed Notice of Appeal received by the EAT had a header time beginning at 01.15 hours on 17 January 1998 and hence, it seems to me, the first date-stamp of 17 January was put on to that document. However, Mr Tchoula tells me, and I accept, that he has never changed the timing device on his fax machine at home and I am satisfied that the times given by Cable and Wireless are to be relied on, rather than the times appearing on the head of the faxed Notice of Appeal.

Mr Smedley, who appears on behalf of the Respondent, had not seen the copy Notice of Appeal which has the date-stamp 17 January 1998 until this hearing commenced. Having examined the material which has been put before me and is relied on by the Appellant, he realistically accepts that he cannot properly contend that this Notice of Appeal was received by the EAT out of time.

In these circumstances I shall allow this appeal. I hold that the Notice of Appeal was received within time and accordingly the matter must proceed in the ordinary way.