United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


JUDGE PETER CLARK:

1. The appellant, Miss Palmer, was employed by the respondent, Kay Bee, as a cleaner from 24th October 1994 until her summary dismissal on 21st April 1998.
2. Kay Bee is a contract cleaning company. It had a contract to provide cleaning services to Lucas Diesel Systems Ltd ["Lucas] at their factory premises at Stonehouse, Gloucestershire. Her supervisor with the respondent was married to an employee of Lucas who was responsible for the cleaners, referred to as Mr B.
3. Following her dismissal she presented a complaint against the respondent, Kay Bee only to the Bristol Employment Tribunal on 20th July 1998. She alleged that she had been unfairly dismissed by Kay Bee, who were also in breach of contract.
4. That complaint was heard by a full tribunal chaired by Mr C F Sara sitting at Bristol on 16th and 17th November 1998. It appears from the tribunal's decision with extended reasons promulgated on 30th November 1998 ["the original decision"] that at the outset of the hearing the appellant applied for leave to amend her Originating Application to add as parties Lucas and Mr B. The allegation against them was one of sexual discrimination in the form of sexual harassment of the appellant by Mr B for which Lucas, as his employer, was vicariously liable, in circumstances where she was a contract worker within the meaning of s.9 of the Sex Discrimination Act 1975.
5. It seems that at an earlier directions hearing in the form of a Pre-Hearing Review held on 22nd September 1998 the appellant was given leave to add a complaint of sex discrimination against Kay Bee arising out of her allegations against Mr B. She did not then seek leave to add Lucas or Mr B as respondents to her existing complaint.
6. The tribunal on 16th November refused the application to join Lucas and Mr B to the existing proceedings; carried on to hear the complaints against Kay Bee; upheld the complaints of unfair dismissal and breach of contract against Kay Bee, and dismissed the complaint of sex discrimination against that respondent.
7. The question of remedies for unfair dismissal and breach of contract was adjourned and subsequently dealt with at a hearing held before the same Employment Tribunal on 5th January 1999. The appellant appeared at that hearing as she had at the original hearing.
8. On that occasion the tribunal awarded the appellant £558.09 for breach of contract and a total of £3,325.11 for unfair dismissal compensation. The remedies decision, with extended reasons, was promulgated on 15th January 1999.
9. Meanwhile, on 13th January 1999 the appellant wrote to the Employment Tribunal, stating that she wished to appeal against the tribunal's original decision to dismiss her complaints of sex discrimination and victimisation.
10. That letter was referred to the Chairman, Mr Sara, who directed the Regional Secretary to reply to the appellant in these terms and he did so by letter of 20th January 1999:

"I am directed to inform you that if you wish to appeal against the decision of the Tribunal you should do this to the Employment Appeal Tribunal in London in accordance with the notes sent to you with the written decision. I enclose a further copy of the notes in case you have mislaid the original set."

11. Miss Palmer has told me today that she had in the past experienced difficulties with the delivery of post to her address and has shown me, as an example, a letter from her distance learning lecturer, Mrs Egglestone, dealing with the difficulties in getting mail through to her. At first she told me that she had received a copy of the tribunal's letter of 20th January 1999, but later was less sure and finally, I think, told me that she had not received that letter.
12. At all events, she wrote a further letter addressed to the Chairman, Mr Sara, himself, on 7th February, again indicating that she would like to appeal against her sex discrimination and victimisation case being dismissed. I do not have a reply to that letter before me.
13. Meanwhile on 30th January the respondent Kay Bee applied for a review of the remedies decision. That application was dismissed by the Chairman by a decision with reasons promulgated on 16th February 1999. One of the reasons for dismissing that application was that it was a day out of time, although the Chairman went on to deal with the merits of the application.
14. On 13th March 1999 the appellant signed a Notice of Appeal against the tribunal's decision to dismiss her complaint of sex discrimination and victimisation which was received by the EAT on 17th March. In that Notice she identified the decision against which she was appealing as that following the remedies hearing on 5th January 1999. That Notice was service 65 days outside the 42-day limit for appealing in respect of the original decision and 13 days out of time in respect of the remedies decision.
15. On 31st March the clerk assigned to the case, Mrs Dymock, wrote to the appellant on behalf of the Registrar enquiring whether the appeal was directed to the original decision or the remedies decision and pointing out that in either event it was out of time. She was advised of the need to apply for an extension of time for appealing under paragraph 3 of the EAT Practice Direction. A further letter was written on 7th April to the appellant covering the same ground.
16. On 16th April the appellant wrote to Mrs Dymock stating that she wished to appeal against the remedy decision, because her sexual harassment and victimisation claims were dismissed and should have been dealt with at the remedies hearing. She then set out the basis of her sexual harassment claim, and observed that she did appeal within the time limits but sent her letter to the wrong place, that is, the Bristol Employment Tribunal. (That I think is a reference to her letter of 13th January 1999 to which I have referred).
17. The respondent's solicitors were then invited to express their view on the appellant's application for an extension of time for appealing. They did so by letter of 27th April. They opposed the application on the following grounds:

"1. Miss Palmer's complaints of sexual harassment and victimisation were both litigated before the Tribunal in full on November 16th and 17th at a hearing in which seven or eight witnesses gave evidence. Her case was put in full at that hearing and neither her letter nor her notice of appeal disclosed any further evidence.

2. Her notice of appeal doe not adequately identify the point of law upon which she wishes to base an appeal.

3. The monies ordered to be paid to her by the industrial tribunal have in fact been paid by the Respondent and cashed by Miss Palmer. We cannot see that she should in equity be entitled to proceed in such circumstances.

4. Our Client was discontent with part of the Judgement of the Tribunal but felt that there was no point of law upon which it could appeal. However a review was requested by the Tribunal of its own decision although unfortunately our Clients letter requesting a review was precisely one day out of time. The Tribunal rejected our Clients application for a review upon the basis of it being one day out of time.

In such circumstances, it would seem to us wholly inequitable that Miss Palmer should be entitled now to be able to pursue an appeal when she herself is now out of time and in our view has not point of law on which to found such an application."

As to the last point, it seems from the review decision that apart from time considerations, as I have indicated, the Chairman saw no merit in the application

18. The appellant then made further representations by a letter dated 13th May.
19. On 18th May 1999 the Registrar refused the appellant's application for an extension of time for appealing. It is against that order that this appeal before me is brought.
20. In advancing the appeal Miss Palmer takes the following points. First, she tells me, that the sexual harassment of which she has complained is continuing. That of course is not a matter strictly relevant to the appeal before me. Secondly, she tells me that she suffered from illness for a period of about a year and that is an explanation as to why the appeal was not lodged within time. The difficulty with that submission is that the appellant was sufficiently fit to attend the tribunal both at the original hearing on 16th and 17th November 1998 and more particularly, at the hearing held on 5th January 1999. It is also clear from her letter of 13th January 1999 to the Bristol Employment Tribunal that she was sufficiently well to formulate an appeal. The difficulty being, as she herself points out, that she sent that letter to the wrong place.
21. It seems to me clear that this an appeal against the original decision of the Employment Tribunal. Whether it is framed as an appeal against that decision to dismiss the appellant's complaint of sex discrimination against Kay Bee or indeed against the tribunal's refusal to grant leave to the appellant to join Lucas and Mr B as parties to the proceedings for the purpose of pursuing her sex discrimination claim against them. The remedies decision was concerned only with the quantum of her successful claims for unfair dismissal and breach of contract against Kay Bee, as to which awards she makes no complaint. In the circumstances I treat the appeal as being 65 days out of time. However, for the purpose of my judgment it would have made no difference had the appeal been 13 days out of time, as is the case in relation to the remedies decision.
22. The principles upon which the EAT's discretion to extend time for entering a Notice of Appeal are helpfully set out in the judgment of Mummery J, the President, in United Arab Emirates v Abdelghafar [1995] ICR 65. Having emphasised the importance of adhering strictly to the 42 day time limit for appealing, Mummery J identified the following questions which this Appeal Tribunal must address; (a) what is the explanation for the default; (b) does it provide a good excuse for the default? (c) are there circumstances which justify the tribunal taking the exceptional step of granting an extension of time?
23. Mummery J gave examples of explanations for delay which do not amount to good excuses, including prior notification of the appeal to the Appeal Tribunal or the Employment Tribunal or to the other party. That is part of the explanation advanced by Miss Palmer today.
24. In this case she gave notice of her intention to appeal to the Employment Tribunal by letter dated 13th January. That letter was therefore already out of time so far as the original decision was concerned. I am prepared to assume that she did not receive the tribunal's reply of 20th January 1999. She then made a further attempt to appeal by writing to the Chairman, Mr Sara, on 7th February.
25. In these circumstances, it seems to me that the appellant has failed to make out a good excuse for not putting in her Notice of Appeal in time. Applying the principles to which I have referred, it seems to me that the Registrar was correct in refusing an extension of time. Accordingly, this appeal must be dismissed.