United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D J CLANCY (In Person)
For the Respondent	MISS J MULCAHY (of Counsel) Messrs Shakespeares Solicitors 10 Bennetts Hill Birmingham B2 5RS


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the Registrar's Order dated 16 September 1998 refusing to extend time to Mr Clancy for the purposes of validating his notice of appeal. Mr Clancy wishes to appeal from a decision of an Industrial Tribunal following a six day hearing between October 1997 and April 1998.

His application to the Industrial Tribunal was broadly speaking, successful, save in one particular respect. The decision of the Tribunal was entered in the register and sent to the parties on 7 July 1998 and time runs from that date. The Industrial Tribunal concluded that the Applicant, Mr Clancy had been unfairly dismissed by his former employers, Cannock Chase Technical College. The parties were invited to discuss settlement of the rest of his claim, but he was aggrieved because it was his view that redundancy was not the true reason for his dismissal and that he had been picked on and dismissed by reason of his activities on behalf of a trades union.

After the decision had been promulgated, Mr Clancy wrote to the Employment Appeal Tribunal and asked us for a Notice of Appeal form. He wrote on 22 July 1998 which was well within the 42 day time limit. Indeed, it was less than three weeks after the time had started to run. He had two days previously, that is on 20 July 1998, indicated to the Industrial Tribunal that he wanted them to review their decision and told them it was also his intention to appeal against it.

The Notice of Appeal in this case was received by the Employment Appeal Tribunal three days after the expiry of the 42 day time limit period, provided for appeals.

In this case, it is not the Appellant's contention that he was unaware of the time limit, nor was he unaware of the terms of the leaflet which he recognises he was sent, which makes it plain that the fact that he is pursuing a review remedy is not a good reason for not getting on with an appeal to this Court.

What he says is that inexplicably, as he accepts it is, he had marked in his diary the date when he should be sending his Notice of Appeal to the Employment Appeal Tribunal. That date was marked as being 25 August which on his then calculations was ten days before the period of appeal had expired. In fact, time for appealing had expired by the 25 August and he simply is unable to explain how it is that he made this error in his calculation. It was not through ignorance of the time limit provisions or of any of the other procedural requirements.

What he says is that he should be forgiven for this error, partly because the Industrial Tribunal itself was wrong to have excluded certain material evidence before it arrived at its decision. The material evidence concerned was a document which emanated from the technical college on which he, Mr Clancy had made a number of markings. After the first three days of the hearing in October 1997, the proceedings were adjourned and it was on 16 March 1998 that he sought to introduce this document into evidence.

The learned Chairman refused to allow him to put this document in, possibly because the employers by this time had concluded their case and it would have meant reopening the whole case and partly because they were of the view that the document in its heavily overwritten form was not going to be of assistance to them.

Mr Clancy feels strongly that that was a breach of the Tribunal's own rules of procedure, and that being so, the Employment Appeal Tribunal has a duty akin to a public interest duty to correct errors of that sort and that would provide a good reason for extending time.

He therefore says that these are one of the exception circumstances, referred to in United Arabs Emirates v Abdelghafar [1995] IRLR 243 a decision with which he was familiar.

On behalf of the Respondents it was submitted that the reason why the appeal was lodged out of time could be summarised in this way. First the Appellant was familiar with the leaflet and practice direction. Indeed he said he read it several times. He plainly intended to submit his Notice of Appeal within time and not to do so was out of character as he had previously submitted his application in the first instance in time and asked for a review of the decision in time, and he did not feel that he could attempt to excuse himself by the error he had made in the calculation of time and was apologetic for it. In those circumstances, his explanation was no doubt, bona fide and true, but did not provide a good excuse such as to satisfy the second requirement before discretion is exercised.

Attention was drawn to a passage in the Abdelghafar case at paragraph 28:

"Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred, for example, the following explanations have been rejected by the Appeal Tribunal as causes for delay: ignorance of the time limit; oversight of the passing of the time limit......."

It seems to me that the Respondent's submissions are to be preferred to those of Mr Clancy. I am wholly satisfied that I have been provided with a bona fide explanation for the delay. However difficult it is for Mr Clancy to understand how he came to make the mistake, I accept that he did make a mistake despite the fact that he is a mathematician and teaches the subject.

The letters which he sent both to the Employment Appeal Tribunal and to the Industrial Tribunal make it plain that it was from an earlier stage his intention to appeal. He was aware of the time limit and it therefore is highly likely that he would have been applying his mind from an early stage as to the getting in of his Notice of Appeal. Unfortunately, he appears to have devoted his energies rather to preparing his application for a review than to getting his Notice of Appeal in within time. When he realised his mistake on 20 August 1998, he wrote immediately to the Employment Appeal Tribunal and it was that document which constituted his Notice of Appeal which was received on 21 August 1998 three days late.

But I am not satisfied that I should accept as excusing the delay, the fact that there has been a miscalculation or incompetence or oversight as Mr Clancy has invited me to do. The time limit, it must be asserted are limits and not targets to be aimed at. The interest of justice requires that these appeals should be brought to the Court within the 42 day period. After that period has expired, the successful party in the Industrial Tribunal is entitled to assume that the matter is at an end. The interest of justice require finality and that is a factor which I take into account.

Standing back and looking at the whole of the case more generally, I am not satisfied that the interest of justice require me to extend time. I am not prepared to make any judgment one way or the other as to the merits of the complaint which Mr Clancy was making about the rejection by the Industrial Tribunal of a document which he sought to produce on the fourth day of the hearing. I am not in a position say whether that was a just decision or not and therefore I cannot take into account that matter.

In the circumstances therefore, I regret that I am unable to exercise my discretion which I have, in favour of Mr Clancy. The appeal could have been put in within time and should have been put in within time and the explanation I have been given does not, I think, provide a satisfactory excuse for the delay. The appeal will therefore be dismissed.