United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J PATEL (Representative)
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE MORISON (PRESIDENT): This is an Appeal against the Registrar's refusal to extend time to enter a Notice of Appeal two days out of time. Her order was made on 16 June 1998.

The background to this Appeal may be shortly stated. The decision against which the Appellant, Miss Anwar, a Solicitor, wanted to appeal was given on 24 March 1998, when it was sent to the parties, following a hearing on 25 February at Manchester. That was a decision concerning the question of costs. There had been bitterly contested proceedings between the Respondent to this Appeal (but the Applicant in the Industrial Tribunal), a Mrs Watson and Miss Anwar. Included in Mrs Watson's allegations were that Miss Anwar had discriminated against her on the grounds that she was white. That was clearly a hurtful allegation, as all allegations of race discrimination are, and, in due course, after a hearing, that complaint was dismissed. Mrs Watson made another complaint, namely that there had been an unlawful deduction from her wages and she persisted in making those allegations until shortly before the hearing fixed to determine them, when she withdrew them. As a result, Miss Anwar made an application for costs. Because the Applicant's complaints had been divided into two, her complaint in relation to costs, in respect of the substantive hearing which took place, was deferred until after the hearing of the second part, namely, the unlawful deduction from wages allegation.

The application for costs was made through a representative whom Miss Anwar had instructed and the thoroughness with which that argument was presented is evidenced by the fact that the Industrial Tribunal, in due time, gave a 25 paragraph written decision running to some eight typescript pages. Their conclusion was that, having carefully considered the application, they were not satisfied that the Applicant had acted frivolously, vexatiously or otherwise unreasonably in the conduct of the proceedings and therefore they did not have, in their judgment, jurisdiction to make an order for costs. It appears that Miss Anwar's representative immediately informed the Industrial Tribunal, on 25 February 1998, when being told the result - but before the written reasons had been dispatched - that there would be an appeal to the Employment Appeal Tribunal (the EAT). However, nothing was received by the EAT in writing until 7 May 1998, when a document was sent to us by Fax containing a Notice of Appeal which bore the date 13 April 1998. There had been, prior to the Fax, a telephone call in which an enquiry had been made of the EAT as to the progress of the appeal. Time for appealing expired on 5 May 1998 and this was the first occasion on which Miss Anwar had had any contact with the EAT.

The first question that I must decide is whether the Notice of Appeal in this case was lodged out of time. I am satisfied that it was. There is, first of all, no indication that the Notice of Appeal had been returned to the sender. There is no indication that it had been received by the EAT. When I enquired of the Appellant and her Representative, who works in her firm, when the Notice of Appeal was prepared I was told that it was 13 April, a Bank Holiday Monday. I was told that it had been given to a secretary to post on 15 April although no explanation could be given as to why there was a two day time lag between the drafting of the Notice of Appeal - if it were truly drafted on the Bank Holiday Monday - and the following Wednesday. There has been no post book entry disclosed although I was told that a post book is kept which should have shown the despatch of this document. No statement has been prepared by the secretary to indicate that he or she had actually posted the document. The absence of such evidence, despite the learned Registrar's order, seems to me somewhat surprising. Furthermore, as competent Solicitors, the Appellant must surely have known that it was dangerous to leave unexplored the question as to whether the EAT had received the document which they believed to have been sent by post until after the limit - of which they were well aware - had expired. It seems to me incredible that, had the document been sent on 13 April or 15 April the Solicitors would have allowed April to have passed without any kind of contact with the EAT to chase up an acknowledgement or some indication as to the progress of the Appeal.

It follows therefore, as it seems to me, that there is no credible explanation for the delay in this case since I am not prepared, for the reasons I have given, to accept that the Notice of Appeal was, in fact, despatched on 15 or 13 April as contended. The suspicion I have is that the matter was not attended to by the Solicitors, perhaps because of pressure of work and because they were putting first their obligations to their own clients rather than their own case and that, indeed, the matter of an appeal was not dealt with until 7 May when the Fax was sent, by which time the Appeal had been lodged out of time. But all I have to be satisfied about, on the balance of probabilities, by the Appellant, is that they did lodge the Notice of Appeal beforehand and that there has been some error in the postal service: for the reasons I have given I am not so satisfied. They have not discharged what I regard to be the burden of proof upon them and I am therefore of the view that the learned Registrar's decision was correct. For these reasons the Appeal will be dismissed.