United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED
For the Respondents	MR K O'DONOVAN (of Counsel) Instructed by: The Solicitor East Staffordshire Borough Council Town Hall King Edward Way Burton-upon-Trent Staffordshire


 


JUDGE PETER CLARK:

1. The proposed appellant, Mrs Riordan, was employed by the respondent Council from 4th August 1993 until her dismissal effective on 18th May 1998. At the internal disciplinary hearing which led to her dismissal held on 31st March 1998, she was represented by Mr Snowden, an employment consultant.
2. Following her dismissal she presented an Originating Application to the Employment Tribunal dated 25th June 1998 in which she complained of unlawful dismissal, unfair dismissal, breach of contract and claimed stigma damages. She named Mr Snowden as her representative.
3. An interlocutory hearing was held on 14th August 1998 at which she was again represented by Mr Snowden.
4. The substantive hearing of her complaint took place before a full Employment Tribunal sitting at Leicester chaired by Mr D Price on 23rd and 26th to 27th October 1998. Again she was represented by Mr Snowden. By a decision with extended reasons promulgated on 12th November 1998 all her complaints were dismissed. That outcome was announced orally to the parties by the Chairman on the last day of the hearing, 27th October 1998.
5. On 25th November 1998 the appellant applied for a review of the substantive decision by a letter extending to some 25 pages. The appellant requested that the review decision be sent in due course to Mr Snowden.
6. By a decision dated 1st December 1998 and not 13th December as stated in the appellant's application for leave to appeal out of time, the Chairman, Mr Price, summarily dismissed the review application under Rule 11(5) of the Employment Tribunal Rules of Procedure 1993. He found that the review application repeated evidence and argument which was before the Employment Tribunal at the October hearings.
7. On 15th December 1998 the appellant consulted a solicitor and a application was made for Legal Aid in order to obtain representation on appeal. On 22nd December the Legal Aid Board wrote to the appellant indicating that no Legal Aid assistance would be provided.
8. The last day for submitting a Notice of Appeal against the original decision in time was 24th December 1998. No notice had by then been lodged with the EAT.
9. On 4th January 1999 the appellant faxed to the Employment Appeal Tribunal a Notice of Appeal and an application for leave to appeal out of time. She appears to accept that she was aware of the 42-day time limit at all relevant times.
10. Having considered written representations from the parties, the Registrar refused to extend time by an order dated 4th March 1999. It is against that order that this appeal is brought.
11. The grounds on which the appellant sought and now seeks an extension of time for appealing may be summarised in this way; first, the appellant delayed lodging her Notice of Appeal because she was waiting for the outcome of the review application. Secondly, there was a delay while she sought Legal Aid assistance for the purpose of bringing this appeal and for representation on the appeal. Thirdly, she states that she had suffered from ill health and refers to medical certificates in relation to her state of health. Fourth, she contends that she was told by a member of the EAT staff by telephone that if the appeal documents were at the EAT for the first day after the Christmas and New Year break they would be considered. I take that from her letter to the Registrar dated 10th March 1999. In earlier representations she put the matter slightly differently when she said this:

"The Appellant continues to reply on the advice received from the EAT itself, who stated that an Appeal lodged by first post on January 4th 1999 would be acceptable due to seasonal interference."

It seems to me that there is a considerable difference between those two statements. I regard it as inconceivable that a member of the administrative staff at the EAT would purport to indicate to a litigant that she would receive an extension of time. I think that the comment contained in her letter of 10th March is more likely to be accurate, that if the documents were at the EAT after the break they would be considered. That of course is what has happened, they were considered by the Registrar and they are now being considered by me.

12. The appellant does not appear today as a result, she says, of ill health. Earlier applications for an adjournment of today's hearing, having been rejected first by the President, see the EAT letter dated 9th September 1999, and again by the Registrar by letter dated 21st September 1999. I should add that a telephone call was received today from the appellant's husband merely enquiring as to the outcome of the appeal before me today.
13. I have heard submissions from Mr O'Donovan who appears on behalf of the respondent opposing the appeal.
14. Dealing with those four grounds individually. It is clear from the guidance provided by the former President, Mummery J, in United Arab Emirates v Abdelghafar [1995] ICR 65 at 71, that a number of explanations commonly given for appeals being lodged out of time are merely that, they are not good excuses for delay. It is incumbent upon the appellant to provide a good excuse for the delay. Delay whilst waiting for the processing of an application for Legal Aid or time spent waiting for the outcome of a review application are not good excuses. In those circumstances, I reject the first two grounds for an extension of time.
15. Dealing next with the appellant's reliance on ill health. Leaving aside Mr O'Donovan's submission that the medical certificates do not appear to cover the entire relevant period of December 1998, what is absolutely clear to me is that during December 1998 the appellant was able to turn her attention to her case. I begin of course with the application for review made on 25th November 1998 and I note that the grounds for review covering some 25 pages are substantially repeated, although in abbreviated form, in the Notice of Appeal. In these circumstances it seems to me that if the appellant was able to make a detailed application for review, she was plainly well enough to lodge Notice of Appeal within time. Furthermore, the application for review was rejected by the Chairman's decision promulgated on 1st December and it having been rejected, it was then open for the appellant to lodge her Notice of Appeal. Further, she consulted a solicitor about her case on 15th December 1998. Again, a clear opportunity for her to put in a protective Notice of Appeal within time. In these circumstances, I am quite satisfied that her state of her health, whatever it may have been at the time, did not preclude her from lodging a Notice of Appeal within time, and indeed she says in terms, that she was not disabled from lodging an appeal in answer to the written submissions made by the respondent in opposition to her application for an extension of time.
16. Finally, so far as the advice, and I use the word loosely, from a member of the administrative staff at the EAT is concenred, I am quite satisfied that no indication was given that by faxing an extension of time application on 4th January, that that would lead automatically to the appeal being accepted.
17. It seems to me that this is a case in which no real excuse has been advanced for allowing time to pass. The 42 day time limit is to be strictly enforced, save in rare and exceptional cases, where as a matter of discretion it would be right to depart from that time limit. This is plainly not one of those exceptional cases. In these circumstances I shall dismiss this appeal.

JUDGE PETER CLARK: Following my judgment in this case, Mr O'Donovan on behalf of the respondent Council has made an application for costs. He says that at the very least, the applications for an adjournment of this hearing having been refused by letter of 9th and 21st September, that the appellant ought to have notified the respondent that she did not intend to appear before me today and thus give the respondent an opportunity to consider relying on written representations rather than attending by solicitor and Counsel. To that extent, he submits, the appellant has acted unreasonably in her conduct of the proceedings before the Appeal Tribunal.

I have no hesitation in accepting that submission. I am told that the costs to the respondent of today's appearance are £1,702.50. I do not, as a matter of discretion, intend to make an order in the full amount claimed. Furthermore, I have no indication as to the appellant's means. But I have been referred by Mr O'Donovan to a letter from the respondent to the appellant dated 9th February 1999 in which it was made clear that the Counsel opposed her application for an extension of time for appealing and warned her as to a future costs application. Indeed, the appellant refers to that letter specifically in her submissions to the Registrar.

In these circumstances, since the appellant has made no attempt to indicate what are her means, it seems to me that it would be wrong to adjourn the costs application for an enquiry into her means. Doing the best I can, and it is to some extent a token order, I shall order the appellant to pay £250 towards the respondent's costs in this appeal against the Registrar's order.