United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R MACKENZIE (Director)
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 for lodging a Notice of Appeal. The Appellants, Gateway Professional Services (Nun-Royd) Ltd wish to appeal a decision of an Industrial Tribunal contained in Extended Written Reasons and promulgated on 27 May 1998.

By their decision, the Industrial Tribunal concluded that Gateway had made unlawful deductions from the wages of the Applicant, the Respondent to this appeal Miss Watkins in the sum of £270.37 and ordered the payment of that sum to her.

The Notice of Appeal was received by us on 20 July 1998. It was accordingly 12 days out of time. The Registrar's Order refusing to extend time, was dated 18 August 1998 and the appeal against her Order, is itself out of time by four days. I can say at once in relation to the four days out of time point, that I will not take it into account, I will simply extend the time for appealing the Registrar's Order, but I must deal with the substantive matter. We received a Notice of Appeal out of time, the Court has a discretion to extend time and it will, broadly speaking, apply the helpful guidance and principles in United Arab Emirates v Abdelghafar [1995] IRLR 253, in approaching the exercise of its discretion.

The explanation that is advanced for the late filing of a Notice of Appeal, is that on 30 June 1998, the Appellant say that they posted to the Employment Appeal Tribunal their Notice of Appeal. If they had done so, that would have been well within time. I have been told on behalf of the Appellant that there is in their office a post book which would show the address of any correspondence that was being posted and the value of the postage stamp. It is a manual record.

Mr McKenzie, a director of this company did not think to produce that record. He tells me that he checked with the person who was responsible for sending the post out and that person had confirmed to him that she recollected that it had been sent out, but he accepted that she may not have been the person who actually physically posted the letter. He told me that he has had no return from the Post Office to indicate that the letter has been misdirected or misdelivered. He knew that there was a 42 day time limit, but told me that he did not consider that it was necessary to check with the Employment Appeal Tribunal as to the receipt of the Notice of Appeal before the 42 day time limit expired, because he relied on his knowledge and experience of the length of time it took for the local County Court to respond to similar documents.

When he did check, when time had already expired, I am satisfied that he acted promptly thereafter.

I am not prepared to extend time in this case. It seems to me that it is the responsibility of the Appellant to ensure that their Notice of Appeal arrives at the Employment Appeal Tribunal. It seems to me that knowing of the 42 day time limit, Mr McKenzie has no reasonable excuse for not enquiring of the EAT much earlier than he did as to whether the document which he thought had been posted had in fact been posted.

Furthermore, it seems to me that it is unsatisfactory on an appeal of this sort that Mr McKenzie should not have produced as part of his case a copy of the relevant entries in the post book or obtained a statement from the person to whom he said he had spoken about the document.

In the circumstances, whilst I understand the explanation which has been given to me I am not prepared to say that there has been a postal error, or if there has been that the Appellants have acted reasonably in relation to the lodging of the Notice of Appeal. Accordingly, in the exercise of my discretion, I refuse to extend time. The appeal against the Registrar's Order will therefore be dismissed.