United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J SYKES (Representative)
For the Respondents	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE RESPONDENTS


 


JUDGE PETER CLARK: The procedural history in this case is as follows. On 8 April 1997 the Appellant, Mr Rookwood, presented an Originating Application to the London (South) Regional Office of Industrial Tribunals, complaining of unfair dismissal by his former employers, CTL Components Plc. By a Notice of Appearance dated 18 April the Respondent gave notice of its intention to resist the claim.

At a pre-hearing discussion held before a Chairman, Mr R. Peters, on 26 August 1997, that Chairman made certain interlocutory orders and directions which are set out in a letter to the parties dated 2 September 1997, namely:

(1) He refused an application made by the Appellant for leave to amend his Originating Application to add a complaint of unlawful direct racial discrimination.

(2) He identified the issues between the parties in respect of the unfair dismissal complaint.

(3) He declined to make any Order for Discovery against the Respondent.

(4) He listed the matter for hearing for one day on 17 October 1997.

(5) He encouraged the parties to prepare written witness statements for use at the hearing.

On 12 September 1997 the Appellant's representative, Mr Sykes, submitted to the Industrial Tribunal a document identified as "Appeal Against Decisions of Tribunal at Interlocutory Hearing 26 August 1997". I should add that the Appellant appeared in person at that hearing, Mr Sykes not then being available. He wished to re-open the question of leave to amend the form IT1; to have the length of the substantive hearing extended from one to three days; to renew the application for discovery and also to apply for five witness orders. Finally, he asked for a further interlocutory hearing.

That application was placed before Mr Peters who, on 23 September replied, declining to vary the orders made on 26 August, and refusing the request for Witness Orders at that stage.

On 17 October, the matter came before a full Industrial Tribunal chaired by Mr I.S. Lamb. Mr Sykes renewed his application to amend the form IT1 to add a complaint of racial discrimination. That application was opposed. It succeeded. The order of Mr Peters, refusing the amendment, was varied. The case was then postponed to a three-day hearing fixed for 17 - 19 March 1998. Extended Reasons for the Lamb Tribunal Orders were promulgated with the decision on 6 November 1997.

Dissatisfied with the Lamb Orders, the Respondent appealed by a Notice dated 3 December 1997 (EAT/13/98). At a preliminary hearing held on 2 March 1998 that appeal was permitted to proceed to a full hearing. As a result the dates, 17 - 19 March before the Industrial Tribunal, have been vacated.

Meanwhile, by a Notice of Appeal received by the Employment Appeal Tribunal on 21 January 1998 this Appellant appealed against the Interlocutory Orders made by Mr Peters on 26 August and 23 September 1997 and that appeal was well out of time. An application for an extension of time for appealing was refused by order of the Registrar dated 27 February 1998. Against that order the Appellant appealed on 17 March 1998. It is that appeal which is now before me.

A question arises as to whether the appeal against the Registrar's order is out of time; however I shall deal first with the merits of the application for an extension of time for appealing in the substantive appeal by the Notice dated 21 January 1998.

I see from paragraph 6 (c) of the Appellant's appeal against the decision of the Registrar which is confirmed today by Mr Sykes, who appears on behalf of the Appellant, that a conscious decision was taken by the Appellant and/or his adviser not to appeal against the orders made by Mr Peters so as not to delay the substantive hearing in the Industrial Tribunal, originally fixed for 17 October 1997, but that having received the Respondent's Notice of Appeal against the Lamb Tribunal orders, which rendered a delay to the substantive hearing fixed for 17 - 19 March likely, it was then decided to appeal the Peters orders since no additional delay would be caused.

In my judgment that is not a good excuse for entering the appeal out of time. Time limits for appealing will be strictly enforced unless there are exceptional circumstances justifying an extension. Mr Sykes submits that exceptional circumstances do arise in this case as they did in the guideline authority United Arab Emirates v Abdelghafar [1995] ICR 65, in which Mummery J granted an extension of time for entering a Notice of Appeal in circumstances where the substance of the appeal related to the Industrial Tribunals alleged failure to properly apply the law of State Immunity in that particular case.

In the course of giving general guidance in the exercise of discretion in applications for extensions of time for appealing, Mummery J, dealt at page 72 A with the merits of an appeal. He said this:

"The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the appeal tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal."

Mr Sykes has sought to persuade me today that the exceptional circumstances in this case lie, in his submission, in the fact that the Chairman, Mr Peters, so negligently discharged his duties when considering the application for discovery, that he overlooked material that was plainly there in front of him in declining to make an order for discovery.

My first reaction to that point is that it goes to the merits of the appeal and is not in the exceptional category that arose on the facts in the Abdelghafar case. But secondly, I am unimpressed by the force of the submission.

It seems to me that the Chairman had before him a Respondent who submitted that all the relevant documents had been disclosed. It was a matter for the Chairman as to whether or not he accepted that submission. I am not persuaded that the material before the Chairman made it pellucidly clear that further relevant documents existed. They may or may not, but at this stage I am far from satisfied that this is one of those exceptional cases where it would be proper to extend time.

In these circumstances I can see no error on the part of the Registrar in exercising her discretion against allowing an extension of time and accordingly I shall dismiss this appeal.