United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS M DOUGLAS Representative
For the Respondent	No appearance by or on behalf of the Respondent


 


THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): This is an appeal against the refusal of the Registrar to extend time to Mr Douglas to enable him to appeal against an interlocutory order of an Industrial Tribunal promulgated on 14 May 1997.

The Notice of Appeal was received 5 months out of time. The appeal against the Registrar's Order was filed 58 days out of time. The background to this matter is somewhat complicated. On 14 May 1997, the Industrial Tribunal promulgated the interlocutory order against which the appeal is sought to be advanced. The order of the Tribunal was that part of Mr Douglas's Originating Application against his employers, Ipel Limited, should be struck out, namely that part of his claim alleging unfair dismissal. The reason why it was struck out was because the Tribunal was of the view that it was frivolous because the Applicant had less than the requisite period of qualifying service for the purposes of presenting a complaint of unfair dismissal.

The Tribunal had recorded inaccurately in that decision the Applicant's length of service as being from 10 May 1995 until 13 December 1995, which would give a period of service about 7 months. In fact that is an error, it may be a typographical error, because it is apparent looking at the Originating Application that the true period of his employment relied upon by the Applicant was from 10 May 1995 until 13 December 1996, in other words 19 months of service rather than merely the 7. Mr Douglas has had the benefit of being represented by his mother. She points out that the decision of the Industrial Tribunal to strike out part of the claim as being frivolous was taken without any kind of prior notice to them that that possibility was in the Tribunal's mind and she says that cannot be in accordance with natural justice.

In fact the position is clear. The Rules of the Industrial Tribunal Rules of Procedure, require that before any claim is struck out or any part of a claim is struck out on the grounds of being frivolous, notification shall have been given to the person concerned that that was in mind. For the purposes of this appeal therefore, I shall proceed on the assumption that there is a strong case for saying that the Industrial Tribunal's decision was wrong in law both because the Tribunal misunderstood the length of service and because the Tribunal had failed to comply with its own procedural requirements.

The Industrial Tribunal did proceed however to consider the Appellant's complaint by a decision which was promulgated on 12 September 1997. That decision followed a hearing on 4 June 1997 at Liverpool and the Tribunal recalled that the Originating Application was amended to include a claim for dismissal by reason of the fact that the Applicant asserted a statutory right which would give the Tribunal jurisdiction to consider the fairness of such a dismissal. The Tribunal also noted that the ordinary unfair dismissal element of the claim had been struck out. There was a pre-hearing review which took place on 13 March 1997.

The Tribunal having heard the evidence came to the conclusion that the real reason for dismissal was a reason not relating to the assertion of a statutory right and that therefore they did not have jurisdiction to deal with his complaint of unfair dismissal. The decision having been promulgated, the Appellant asked the Industrial Tribunal to review their decision by an extensive application which was accompanied by documentation and in my papers it runs to some 15 or 16 pages. The Industrial Tribunal considered the application for a review and rejected it on the basis that they were not satisfied that the interests of justice required the review; That insofar as new evidence was referred to, it was not evidence which could not reasonably have been known of or foreseen at the time the hearing took place. In all the circumstances, the review should be refused.

A Notice of Appeal against the decision of the Industrial Tribunal on liability has been received by the Employment Appeal Tribunal and was filed within time. That is a document which runs to some 18 or 19 pages. The reasons advanced by the Appellant for applying to the Court so late to appeal against the interlocutory order relates I think to the complexity of the litigation and the interrelationship between the part of the Originating Application which was dealt with interlocutorily and the remainder of the application which was considered on its merits.

The Appellant says that he and she, that is his mother, did not know at the time that there was a time limit for appealing against interlocutory orders of the sort that was made in this case but they believed in any event that they could sort out the issues which had been dealt with at the hearing which was then due to take place in relation to the rest of the complaint. It is obvious to me that the Appellant and his mother have put in an enormous amount of work into researching their rights in relation to making complaints to an Industrial Tribunal. If I might respectfully say so without appearing to patronise them, their endeavours have been quite admirable in many respects. It is plain that the mother now has a considerable grasp of legal issues.

I have to decide whether I have been provided with any good reason or excuse for the delay in advancing the appeal against the interlocutory order. This is a case where I have considerably sympathy with the position of the Applicant/Appellant. They are battling away without the benefit of legal representation and have confronted an employer, who was armed with full legal representation at the Industrial Tribunal hearing. But I have been unable to say in accordance with the principles laid down in United Arab Emirates v Abdelghafar that this is one of those cases where time should be extended.

It seems to me that the Appellants have left it too late to appeal against the original order. They were, I think, preferring to get their case heard on the basis of an amended claim that, even if the length of service was less than 2 years, nonetheless the Tribunal had jurisdiction to hear the matter. I can only add that although the circumstances in which the Tribunal came to make the interlocutory order were unfortunate for the reasons I have indicated, the claim which was being made for unfair dismissal on an ordinary basis, as one might call it, was entirely speculative and is dependent for its success on the determination by the European Court of Justice in the Seymour v Smith case in favour of him being allowed to present his complaint, although he did not have 2 years of service. As I pointed out to the Appellant, his claim at best on this basis was speculative.

I am therefore not going to extend time but even if I was wrong about that, I have to say that I am completely unsatisfied that I have been provided with any good excuse for the delay in appealing against the Registrar's Order. The time is set out clearly and is short, but it is short because it permits Appellants to give oral notification of an intention to appeal from such an order. Whilst I accept that Mr Douglas and his mother were researching the position as best as they could, I am simply unable to accept that 58 days delay was to be excused by this activity. 58 days is more than the 42 days which is allowed for bringing an appeal in the first instance. It is plainly contemplated by the Rules that appeals from the Registrar's Order should be made promptly to the President. This was well out of time and I do not accept that the excuse which was put forward does more than explain what was happening, I do not believe it excuses the delay in making the appeal to the President. Accordingly, I have to say that this appeal against the Registrar's Order should be dismissed both because I think that her order was correct and because there has been too much delay between the making of that Order and the presentation of this appeal to me.

Appeal dismissed.