United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR V T APELOGUN-GABRIELS The Appellant in person
For the Respondent	MS G WALSH Solicitor Lambeth Legal Services London Borough of Lambeth Town Hall, Brixton Hill London SW2 1RW


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of the Registrar, who refused to extend time in relation to the prospective Appellant's appeal against the decision of an Industrial Tribunal which was promulgated on 13 May 1998.

The Notice of Appeal was received by us on 10 July 1998 and was thus 16 days out of time. In considering this appeal, I must take into account the guidelines laid down in United Arab Emirates v Abdelghafar which conveniently and succinctly sets out the approach which the Employment Appeal Tribunal takes to these issues.

The decision of the Industrial Tribunal was communicated orally on the day of the hearing, that is 7 May 1998 to the Applicant/Appellant and to his solicitor, who was appearing on his behalf. The next thing happened according to the Appellant was that he spoke to the Industrial Tribunal enquiring when the written decision would be emerging. He was already of a mind to appeal against the decision, knowing its result. He knew that there was an appeal to the Employment Appeal Tribunal and it would appear that he was aware that there was a time limit for appealing to the Employment Appeal Tribunal. He told me that he was informed over the telephone by the Industrial Tribunal offices that it was likely to be a period of 42 days before the written decision would be sent to him. However he spoke again to the Industrial Tribunal to find out what the progress was and he also spoke to his solicitor. His solicitor was uncooperative, reluctant to see him and appeared unwilling to make available documentation without being paid. I am not entirely clear as to whether he was exercising a lien over the papers in this case but that is what I was told by the Appellant.

He also told me that the first date on which he received the decision from the Industrial Tribunal was 24 June. That would appear to be the last day for filing a Notice of Appeal, but he went to a law centre on 26 June who advised him that that day, namely the 26th, was the last day for lodging an appeal. They gave him an appeal form, did not fill it in for him and left him to complete it himself. It follows therefore that it took from 26 June, when he knew that there was a time problem and had the decision available to him until 10 July before he presented his Notice of Appeal. He says in relation to that, that he needed to collect his thoughts to prepare the documentation for the appeal and that he was mindful of the fact that the Industrial Tribunal in its decision, refusing to take jurisdiction over his complaints of race discrimination, had criticised the way he had prepared his IT1. So he said, rather than run the risk of being criticised again for lack of clarity, he took time to get his Notice of Appeal in proper order. He submits to me in those circumstances that he had very little time to prepare an appeal having regard to the circumstances in which the decision came to his attention, that he has not behaved in any way unreasonably, that he took reasonable steps to chase up the decision and that as a layperson he should not be prejudiced as a result of his desire to seek legal advice and get his Notice of Appeal into a comprehensible form. He points out that because the Tribunal did not take jurisdiction over his complaint of race discrimination, he has not had his day in Court in the full sense.

On behalf of the Respondents, Lambeth Borough Council, Ms Walsh submitted that the appeal against the Registrar's order was itself out of time. I do not believe it to be so but in any event, it does not seem to me that that is a sustainable or valid point. She went on to say that this is not a case where what has happened can be said to provide a sensible reason or excuse for the delay in lodging the Notice of Appeal. She said that he only made one or at most two phone calls to the Industrial Tribunal, that he did not really take any proper steps to obtain a copy of the decision from his solicitors, that when he was advised as to the last day of the appeal on 26 June, he took an enormously long time thereafter when he could so easily have lodged a shortened form Notice of Appeal with the Employment Appeal Tribunal and indicated the circumstances in which that was being done. There was nothing exceptional about the excuse which had been put forward, probably it was the fault of his solicitor but that did not provide a good reason or excuse for the delay.

I have listened with care to the arguments which have been presented to me. I am of the view that the Registrar's decision was correct and that time should not be extended in the circumstances of this case. I am prepared for the purposes of this judgment to accept what I was told by the prospective Appellant as to the steps he took following the hearing before the Industrial Tribunal on 7 May 1998 and that he received the copy of the written decision on 24 June 1998. But whilst I can understand that the circumstances which he outlined to me provides an explanation for what happened, I am not satisfied that it provides any kind of excuse for the delay. There is force in my judgment in the submission that the delay between 26 June and 10 July was inordinate.

I am also of the view that the Applicant is in the end, seeking to rely on the failure by his solicitor to cooperate with reasonable requests for the judgment. Although the solicitor has not appeared before me, on what I have been told I simply cannot understand why it was that he was not passing on a copy of the written decision earlier than he did. Looking at all the circumstances in the round and bearing in mind, as I do, that the effect of rejecting an appeal may well be to prevent the Applicant from having his grievances discussed in court substantively, I am of the view that the appeal should be dismissed. In arriving at this conclusion, I have also taken into account the fact that at the hearing on 7 May the Applicant himself did in fact give a lot of evidence about the nature of his complaints. The appeal will be dismissed.