United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION FOR OR ON BEHALF OF THE APPELLANT
For the Respondents	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


MR JUSTICE MORISON (PRESIDENT): This is an Appeal against the Registrar's order, dated 16 June 1998. Her decision was that time for lodging a Notice of Appeal should not be extended in the circumstances.

The background can be shortly stated. The Appellant, Mr Johnson, was employed by the Trustees of the Fleet Air Arm Museum. He was employed as marketing manager from 4 October 1993 to 30 June 1997 on which date he signed a severance agreement. Subsequently he commenced proceedings in an Industrial Tribunal claiming entitlement to overtime pay amounting to approximately £13,000.

The hearing of that complaint took place before an Industrial Tribunal held at Exeter on 14 and 15 January 1998 and their decision was sent to the parties and promulgated on 29 January 1998, which is the date from which time starts to run for the purposes of calculating the 42 day period for lodging a Notice of Appeal against an Industrial Tribunal decision of this sort.

Mr Johnson's claim for breach of contract was dismissed as was his claim that he was dismissed unfairly. Essentially, in relation at least to the overtime claim, the Tribunal dismissed it because it was satisfied that that claim had been included within the terms of a settlement document that was signed on the day he departed his employment. The Industrial Tribunal was informed that Mr Johnson signed the document on the basis of advice that he had received that his rights would not be compromised. That advice, he said, had been given by a representative of his trade union. At the conclusion of the hearing, I accept, on the basis of the material before me, that the learned Chairman advised the Applicant, in relatively strong terms, that he had been badly served by the advice which he had been given and that he should at least take other advice as to the possibility of bringing proceedings against his trade union.

When a decision of an Industrial Tribunal is sent to the parties, as this one was on 29 January, it is accompanied by a leaflet which sets out in plain and simple terms the rights of the disappointed party to either ask the original Tribunal to review its decision or to make an appeal to the Employment Appeal Tribunal (the EAT). It is clearly stated that the period for making an appeal is the 42 day period to which I have referred. This Notice of Appeal should have been lodged with the EAT within 42 days of 29 January 1998 and should have been received, here, around about 12 March. In fact, the Notice of Appeal was received by the EAT significantly later and the Notice of Appeal invited the EAT to extend time for lodging the Notice which, it was accepted, was out of time.

Accompanying the application to the Registrar for an extension of time was an affidavit and a submission, drafted by Mr Napier of Counsel, in support. Essentially there are two matters which are raised. The first is that as a result of what was said at the Industrial Tribunal the Appellant believed that he should pursue a claim against the union and, secondly, that he did not know of his right to appeal to the High Court in circumstances where the EAT did not have jurisdiction to entertain an appeal in a breach of contract case, although he did know of the "loophole" in the EAT's jurisdiction in consequence of what he was told at a management conference that he attended at the time when the decision was promulgated. Accordingly it is submitted that the Appellant was, through no fault of his own, misled and confused as to his legal rights and it is submitted that it is unjust that the Appellant should be prejudiced by the strict application of the time limit in circumstances where there is a discretion to allow the Appeal to proceed.

So the explanation which is put forward for the delay is that there was confusion in the mind of the Appellant as to his rights. It appears from a letter which was sent to the Registrar that at some stage, unspecified, the Appellant had taken legal advice and was given an opinion from Counsel setting out his right to Appeal. A practice direction had been given by the EAT in the light of the difficulty that it was experiencing over its breach of contract jurisdiction and it is plain from that guidance that appeals were not to be held back from the EAT merely because there was a lacuna. It was anticipated and known by this date - the date when the Tribunal's decision was promulgated - that corrective legislation, which was to be back-dated, was on the stocks and that the EAT would have jurisdiction by April of that year.

It seems to me, in these circumstances, that the first question I must ask myself is whether I am satisfied that the Appellant has provided a reasonable explanation for the delay? I am satisfied that what I have been told is honest but I am not satisfied that the explanation put forward justifies the delay in lodging the Notice of Appeal. It seems to me that it would have been only too easy for the Appellant, who knew of the time limit, to lodge a Notice of Appeal or to contact the EAT to find out what the position was if he was genuinely confused as to the legal position, bearing in mind the lacuna in the EAT's jurisdiction. He did neither of those things. It seems to me that what has happened in this case is that the Appellant has concentrated the potentiality for a claim against his trade union in priority to his right to appeal the Industrial Tribunal's decision. That was his prerogative but he did so, it seems to me, at his own risk.

I do not consider that it would be just and equitable to extend time in this case on the basis of all the information before me. I accept that the representations made on behalf of the Trustees of the Fleet Air Arm Museum, who say, in effect, that they were entitled and did believe that after the 42 day period had expired and they would no longer be involved in a continuation of these proceedings, and that to extend time would, in that sense, be of prejudice to them. It seems to me that the museum are right, essentially, in the submissions which they presented by letter dated 20 July 1988, addressed to the Registrar.

For the reasons I have attempted to give in this case, it seems to me, the appeal should be dismissed.