United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MRS J MULVANEY (Solicitor) South Gloucestershire Council The Council Offices Castle Street Thornbury South Gloucestershire BS35 1HF


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the refusal by the Registrar to extend time to Mr Orme to enter a Notice of Appeal 353 days out of time.

The complaint which he made to the Employment Tribunal, which was subsequently dismissed, was that he had been unfairly dismissed by his employers, the South Gloucestershire Council. The Applicant is a qualified teacher and is on the register of supply teachers. As a preliminary issue the Employment Tribunal had to determine whether he had the requisite period of continuous employment to maintain his claim of unfair dismissal.

In a decision running to over 6 typescript pages, and which refers to a large number of decisions both in the United Kingdom and of the European Court of Justice, the learned Chairman concluded that the Appellant was unable to show that he had the requisite period of continuous service and accordingly, his claim of unfair dismissal was dismissed. That was a decision which was sent to the parties on 2 June 1997. When he received it he applied to the Industrial Tribunal for a review of their decision and the Tribunal, having reviewed it, confirmed it subject to one minor modification in relation to the deposit of £100, which had been required to be paid by him following a pre-trial review hearing.

The Applicant also had other claims which were to proceed to be determined by the Industrial Tribunal and directions were given by the Industrial Tribunal following the review hearing. The decision in relation to it was sent to the parties on 4 September 1997.

On 23 September 1997 Mr Orme applied for a stay of the hearing of the discrimination issues which fell to be determined until after the hearing of his appeal in the matter of continuity which he said was also in preparation. The stay was granted but the matter came before the Industrial Tribunal in May 1998 and, as it appeared that no Notice of Appeal had been entered, the question considered was what should now happen?

Meanwhile, on 4 May he had applied for a second review of the decision of the Tribunal given in 1997, on the grounds that the interests of justice required it.

The Tribunal concluded that the application for a review simply consisted of a number of arguments which could have been put at the time, or which could be the subject of an appeal, and he rejected the Applicant's application for a review on the grounds that it was long out of time and had no reasonable prospect of success.

A Notice of Appeal was received by the Employment Appeal Tribunal on 28 May 1998, the document itself being dated 21 May.

The question arises therefore, as to whether this is a case where time for lodging a Notice of Appeal should be extended. In many ways I have sympathy with the Appellant's position. He has extensive caring responsibilities for his wife. He has to deal with her fluctuating condition on a daily basis and he regards caring for her as his first priority. He says that the extent of his caring responsibilities obviously puts him at a very severe disadvantage with regard to the employment market and in dealing with his administrative work, which required periods of concentration which he was not always able to give. He said to me that he had not been idle, but that he had to take decisions sequentially and that effectively, the first time he was able to deal with the appeal was when he dealt with it well out of time.

He is of the view that his employers, the South Gloucestershire Council, have distorted the factual and legal position of his employment as a casual teacher. He feels very strongly that they have deliberately tried to misrepresent the position. He suggests that they have bent and twisted words, and that it misled the Tribunal by the terms of the IT3. He said they have "Pulled the same stunt on me".

In addition to looking after his wife, he also has had a hernia problem, but he was unable to give any particular dates when he went into hospital or the periods during which he was convalescing.

Against that background I must consider whether it is an appropriate case to extend time. I am satisfied that I have been provided with a full and honest explanation by Mr Orme for his failure to deal with this case. In many ways it is understandable that he has not found the time to lodge a Notice of Appeal. Nonetheless, it seems to me that the interests of justice require that appeals should be pursued within the limits which have been provided. There is no indication that he was incapable, in any technical sense, of lodging a Notice of Appeal or indeed, of communicating with the Employment Appeal Tribunal to explain the difficulties that he was having in completing the administrative work required to lodge such a Notice of Appeal. He was aware that there was a time limit for appealing because he received the leaflet which accompanies the Tribunal's decision.

I am not prepared to say that the reasons which have been advanced for not getting on with the appeal constitute a good excuse for not doing so. It seems to me clear that he was able to do his teaching after he received the Industrial Tribunal's decision and was in a position to seek a review of the decision of the Employment Tribunal, prior to lodging a Notice of Appeal with the Employment Appeal Tribunal.

In these circumstances, in my view, the exercise by the Registrar of her discretion not to extend time was correctly made. In the exercise of my discretion I am not prepared to extend time and therefore his appeal will be dismissed.