United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK:

1. This is an appeal by Mrs Trofanisen-Allport against the Registrar's Order dated 2nd June 1998, refusing to extend time for appealing in the following circumstances.
2. These proceedings commenced by the applicant, Mr Lepage, presenting a complaint to the Leicester Employment Tribunal on 15th April 1998, naming Mrs Trofanisen-Allport, his employer, as respondent. The claim was resisted by a Notice of Appearance dated 20th April 1998.
3. The case was listed for hearing before a Chairman, Mr J K Macmillan, sitting alone at Leicester on 23rd June 1998. On that occasion the applicant attended, the respondent did not. On the morning of the hearing the respondent faxed and telephoned the Employment Tribunal to say that she was unable to attend due to illness. She requested a postponement That application was refused and the Chairman proceeded to hear the case.
4. On the basis of the applicant's evidence the Chairman found that he was entitled to:

(1) one week's notice monies £291;

(2) one week's outstanding pay £291;

(3) further unpaid wages £405;

(4) accrued holiday pay £342

Grand total: £1,329.

The Chairman ordered the respondent to pay that amount to the applicant.

5. Against that decision, promulgated with extended reasons on 3rd July 1998, the respondent appealed in time to the EAT by a Notice dated 14th July. That first appeal -EAT/1028/98 – is listed for preliminary hearing before a full division of the EAT later today.
6. The respondent also applied to the Chairman for a review of his original decision.
7. On 16th November 1998 the same Chairman, again sitting alone, held a review hearing. He set aside his original decision on the grounds that he then accepted that the respondent was too unwell to attend the original hearing.
8. Having heard evidence from both parties the Chairman varied his original decision and reduced the total award to £1,038. He arrived at that figure by dismissing the second item of the original award to which I have earlier referred.
9. That review decision was initially promulgated with summary reasons only on 26th November.
10. By a fax dated 1st December 1998 to the Employment Tribunal the respondent applied for extended reasons. She wished to appeal against the review decision.
11. On 19th December Mr Ali, a member of the Employment Tribunal staff, replied indicating that once a copy of the Chairman's extended reasons was to hand a copy would be forwarded to the respondent.
12. It seems that the Chairman signed off his extended reasons for the review decision on 5th January 1999. According to the stamp on those reasons that decision was sent to the parties on 8th January. Time for appealing began to run from that date. It is at this stage that the picture becomes blurred.
13. It is the respondent's case that she did not receive those extended reasons in the ordinary course of post. Had she done so I have no doubt that she would have lodged an appeal within time as she did the first appeal.
14. Not having received the extended reasons she telephoned the Employment Tribunal in January and left messages for Mr Ali which were not returned
15. She finally contacted Mr Ali in early February. Her account of that conversation was that she explained her frustration at the delay in being furnished with extended reasons, to which he replied that as far as he was concerned they had been sent out, but he would ensure that a copy was sent to her.
16. There was also some conversation concerning the EAT, with whom the appellant had been in contact. Mr Ali assured her that there was no need for her to contact the EAT, which was well aware of the situation.
17. I should add that the appellant tells me that she had conversation with a clerk at the EAT in which it was pointed out that she still had extant an appeal against the original decision. That appeal is of little value since the original decision was set aside by the Chairman's review decision. But that may, to some extent, have added to the confusion.
18. I am satisfied that the conversation in early February between the respondent and Mr Ali took place within the time limit for appealing the review decision, which expired on 19th February 1999. Had she then received a copy of the reasons, as she was promised by Mr Ali, she would have been able to present her appeal in time. However, I accept that she did not receive a further copy of the extended reasons at that stage.
19. Still not having received the Chairman's extended reasons, she finally telephoned the Employment Tribunal again on 23rd February and spoke to another member of staff who promptly faxed the extended reasons to her. Had that course been taken following her earlier telephone conversation, then no difficulty would have arisen in her entering an appeal within time.
20. On 24th February, having received those extended reasons, she promptly lodged her Notice of Appeal to be told that it was out of time.
21. She made a complaint to the Employment Tribunal about the service which she had received and a reply was written by the Regional Secretary dated 7th April 1999. In that letter he acknowledged that the tribunal was in error in not sending copies of the June and November decisions in response to a request from the EAT dated 11th January 1999. Apart from that, he was unable to explain why two copies of the extended reasons apparently posted to the respondent were not received by her.
22. I am quite sure that I will not get to the bottom of what happened. However, I am satisfied that the respondent made every effort to obtain the Chairman's extended reasons with a view to appealing the review decision. I am equally satisfied that, through no fault of hers, she did not receive them until they were faxed on 23rd February. She lodged her Notice of Appeal the next day.
23. Some light might have been thrown on the matter had the applicant chosen to comment on this application for extension of time. However, he has not done so, although given the opportunity to do so.
24. Against that background I turn to the issues raised in the appeal before me.
25. Time limits for appealing to the EAT are to be strictly observed. As Mummery J pointed out in his helpful guidance given in United Arab Emirates v Abdelghafar [1995] ICR 65, this appeal tribunal will only exercise its discretion in favour of granting an extension of time for appealing where the potential appellant provides a genuine explanation for the default which provides a good excuse such as to justify this tribunal taking the exceptional step of granting an extension of time.
26. Mummery J gave a number of examples of explanations which did not amount to a good excuse. However, what is said in this case is that the respondent was prevented from lodging a Notice in time by the failure of the Employment Tribunal's administrative staff to provide her with a copy of the extended reasons despite her best efforts to obtain them.
27. In my judgment, there is sufficient material on which I can properly find that on the peculiar facts of this case it would be right, in the interests of justice, to extend time for appealing and to treat the Notice dated 24th February as having been lodged in time. Accordingly I shall allow this appeal.
28. I do so without considering the merits of the proposed appeal against the review decision (which itself set aside the original decision, the subject matter of the first appeal). That question will be considered at a preliminary hearing to be held at a future date in the present appeal.