United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR E BULTITUDE (In Person)
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF RESPONDENT


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the Registrar's Refusal to extend time to Mr Bultitude in respect of a notice of appeal which he wishes to advance against an Industrial Tribunal's decision promulgated on 11 December 1997.

The explanation that I have been offered for the delay in filing the notice of appeal, 105 days out of time, is that Mr Bultitude did not intend to appeal the decision until he had read the decision of another Industrial Tribunal in the case of Nash v Mash/Roe Group Limited [1998] IRLR 168 which sat on 18 August 1997 and in respect of which the decision was promulgated on 27 January 1998.

He points out that there was a long period between the date of the hearing and the date of the promulgation of the decision in Nash and he says that the decision in Nash cast a new light on the merits of his position and that if his Industrial Tribunal had taken the same approach as the Industrial Tribunal in the case of Nash his application for unfair dismissal would have been allowed to have proceeded to a full hearing, he being aged over 65 at the time.

I have considered this case with care. The reason for the delay can be characterised as a potential change in the law or more properly a change of appreciation by Mr Bultitude of his legal rights.

At the hearing in front of the Industrial Tribunal at Exeter on 4 December 1997, the Applicant, Mr Bultitude was represented by a firm of solicitors. The decision in his case was promulgated on 16 December as I have indicated and he had access to professional advice. I do not regard the existence of another Tribunal's decision as providing a good reason for extending time. It seems to me following the decision of the Employment Appeal Tribunal in Setiya v East Yorkshire Health Authority [1995] IRLR 348, that a change in the law is unlikely to be sufficient on its own to justify an extension of time. It is a factor to be taken into account in all the circumstances of the case.

It seems to me that the Respondents who made written submissions in this case are right when they submit that as in Setiya the decision of the Exeter Industrial Tribunal was upon the law as it then stood. Unlike Setiya in this case there is no intervening ruling of a higher Court only that of another Industrial Tribunal which itself is the subject of an appeal to this Court. Therefore at best the other Industrial Tribunal decision merely represents potential arguments that Mr Bultitude himself might have relied upon at his hearing and/or on his appeal to contest at the application of s.109 of the Act to him. He did not rely on those arguments even though he was professionally advised, nor did he advance those arguments in a notice of appeal lodged timeously.

Whilst the period of delay is a material factor it is certainly not the exclusive factor and I agree with that. It is submitted that the proposed appeal also raises arguments which were simply not before the Industrial Tribunal and it is pointed out that there are only very limited circumstances in which we will permit such arguments to be made.

It does not seem to me that this is a case where the interest of justice require that I should extend time. All the arguments available to Mr Nash were available to Mr Bultitude, both at the Industrial Tribunal and in Mr Bultitude's case, in relation to his appeal. If Mr Bultitude had wished to challenge the effect of s.109 with the benefit of his legal advice, he could have done so. He could have lodged his appeal within time. I do not in these circumstances, think that I have been provided with any satisfactory reason for lodging a notice of appeal out of time and accordingly, I agree with the Registrar. In the exercise of my discretion, I dismiss this appeal.