United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GINGELL (Trainee Solicitor) Messrs Preuveneers & Co Solicitors Elm House 113-115 London Road Mitcham Surrey CR4 2JA
For the Respondents	MS P WALSH (Representative) Personnel Manager Lambeth Service Team Ltd Service Team House 185-205 Shakespeare Road London SE24 0PS


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal from a refusal by the Registrar to extend time for the lodging of a Notice of Appeal. This Notice of Appeal was one day out of time. The circumstances giving rise to this appeal may be shortly stated.

1. Mr Woods, who is the prospective appellant, made an application to an Employment Tribunal alleging that his former employer, Lambeth Service Team Ltd, had unfairly dismissed him. The Company is an organisation formed by Lambeth Borough Council to conduct a number of the Council's activities including that of rubbish collection. He was dismissed because of what he did during the course of his employment in relation to some commercial waste.
2. The tribunal was plainly troubled by part of Mr Wood's evidence. The employers were represented by a Ms Walsh, the Personnel Manager, and it would appear they did not, as might be normal, give evidence first. In fact, they had no witnesses available to give evidence, as I understand it, and the tribunal accordingly felt that they had no means of deciding whether Mr Wood's interpretation of his instructions was sufficiently realistic for it to conclude that he had genuinely held that view. In other words, they were troubled by Mr Woods' own evidence as to whether he could be believed when he said that he was doing something which he did not think was wrong. The tribunal went on:

"15. … In the view of the Tribunal it was also necessary to decide whether it should reasonably have occurred to the Respondent that Mr Woods might hold such a view. If it should reasonably have occurred to the Respondent then, in the view of the Tribunal, the Respondent should have enquired whether Mr Woods did hold that view. In view of the significance that the Tribunal attaches to this missing evidence the Tribunal invited the Respondent to consider making an application for review of the decision in respect of Mr Woods if, after discussion, the Respondent concluded that it had evidence that would effect the Tribunal's decision as to the reliability of Mr Wood's evidence on this point."

3. The position is, as I understand it that at that hearing the respondent company did not have any witnesses available and did not ask for an adjournment. The Chairman accordingly wrote the decision in favour of Mr Woods and upheld his complaint of unfair dismissal. That was by a decision sent to the parties on 12th August 1998.
4. The Lambeth Service Team Ltd then applied to the tribunal to review its previous decision and the tribunal records that as a result of that review it amends its previous decision and now decides that the application of Mr Woods for unfair dismissal fails.
5. The tribunal recorded in their decision this:

"2. … At the initial hearing the Applicant made a number of different statements about his understanding of the rules for refuse collection. It seemed to the Tribunal possible that he was carefully following the questioning and providing what he considered the most appropriate answer at any particular time. Although the Respondent is a large organisation quite capable of producing legal representation, Ms Walsh is not a trained lawyer. The Tribunal was of the opinion that most legally qualified practitioners experienced in this field would have sought an adjournment, in the light of the Applicant's evidence, to permit them to refute it. No doubt, had such an application been made the Tribunal would have made an order for costs against the Respondent in respect of the lost day of the hearing. The Tribunal was, however, of the opinion that it would certainly have granted such an application. The Tribunal thought it appropriate, therefore, even though it might be an unusual course, to permit the Respondent an opportunity to refute what it considered to be challengeable evidence."

Accordingly, they went on to say:

"3. … although the Respondent duty requested a review and produced two witnesses neither or those witnesses gave evidence which in itself would have persuaded the Tribunal to change its previous decision. …"

The tribunal went on:

"6. In the course of this review hearing, however, during cross-examination of Mr Woods by Ms Walsh, Mr Woods clearly stated that he knew that the refuse he was collecting was commercial waste. … It would be apparent that this evidence differs fundamentally from the evidence upon which the original decision relied. It may be, although the Tribunal does not think it is so, that the Tribunal had misunderstood Mr Woods' evidence on the first occasion. If that is so then the Tribunal's original decision is simply wrong on its findings of fact. If, as the Tribunal believes its earlier decision was based on the evidence given by Mr Woods at the original hearing then that evidence has been changed by Mr Woods during cross-examination in this review hearing. …"

6. It seems to me quite clear that the course which was adopted by this Employment Tribunal is not only unusual but may well be legally defective. I therefore am faced with a Notice of Appeal, which is out of time in relation to what may well be described as a procedural blunder.
7. Mr Woods' position is that he won his claim and then subsequently has lost it, not as the result of the calling of the fresh evidence, but as a result of him being further cross-examined about the very matters which he had been cross-examined about on the previous occasion.
8. The explanation for the delay in lodging the Notice of Appeal has been frankly accepted as being a blunder on the part of the lawyers representing Mr Woods. They knew the time limit; they instructed Counsel to settle the Notice of Appeal; Counsel returned the papers after the time for the appeal had passed by one day; they thereafter acted with promptness.
9. In those circumstances, what should this Court do?
10. Applying the principles laid in Abdelghafar v United Arab Emirates, the questions which this Court will pay attention to are the explanation for the delay and whether it provides a good excuse for the delay in lodging the Notice of Appeal. It is indicated in that decision that only in exceptional circumstances is it likely that the Court will exercise its discretion in favour of allowing an out of time appeal.
11. I have to say that this seems to me to be one of those exceptional cases. The EAT has a role which is wider than just dealing with the appeals in any particular case. It has a wider supervisory jurisdiction, as it seems to me, over Employment Tribunals so as to ensure that procedural mishap does not occur, which renders the proceedings defective.
12. Because of the circumstances giving rise to this particular appeal, I am satisfied that it is right that the Employment Appeal Tribunal should take jurisdiction over this appeal, even though it has been lodged out of time.
13. In the exercise of my discretion therefore, I am prepared to extend time, even though, it goes without saying, in normal circumstances ignorance of the time limit or a failure to comply with a known time limit through inadvertence or negligence will not be regarded as an acceptable excuse justifying the tribunal in taking jurisdiction.
14. In this special case, therefore, I am prepared to allow the appeal, so as to enable the points raised within it to be considered by the EAT, first at a preliminary hearing and thereafter, if it passes through, to a full hearing. The appeal will therefore be allowed.