United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR I WORKMAN IGW Group The Island 2 Blackburn Road Bolton BL1 2HY
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the Registrar's refusal to extend time for lodging a Notice of Appeal 164 days outside the 42 day time limit. The Registrar's Order was made on 16 October 1998. The terms of the Order are these:

"UPON a Notice of Appeal being lodged 164 days outside the time-limit .......

AND UPON consideration of the application for an extension of time .......

AND UPON the failure of the Appellants to supply final submissions despite being requested so to do in letters dated the 15th day of September 1998 and the 1st day of October 1998

IT IS ORDERED that the Notice of Appeal be struck out"

It seems to me before considering the merits of the appeal that the learned Registrar's Order is inappropriate. She was being asked to consider an application for an extension of time. The fact that a party does not put in representations when invited to do so, does not cause the Notice of Appeal to be struck out. As I understand her ruling, she was relying on the failure to provide any further reasons as being an additional reason for refusing to extend time for the Notice of Appeal to be lodged.

In this case, I am exercising the discretion which the Court has to extend time where there has been a late appeal afresh. I therefore ignore, in the technical sense, the failure to supply submissions in response to letters. I am dealing with the appeal on the basis of the material which has been presented to me and which I take into account.

The decision under appeal is a decision of an Industrial Tribunal held at Manchester on 4 December 1997 which upheld the Applicant's complaint that there had been unlawful deductions from his wages in the sum of £1449.48. The employer's counterclaim for compensation was rejected. That decision was sent to the parties on 30 December 1997. The Notice of Appeal was received on 24 July 1998. It is dated 28 January 1998 which was within time. The Appellants primary submission which was forcefully made was that the Appellants cannot be held responsible for postal delays. The document was sent on 28 January 1998, Mr Workman said, "we posted our documents and can prove it", and I was shown a photostat copy of what I was told was an entry in the Appellants post book, which showed an item of post to the Employment Appeal Tribunal on 28 January 1998.

Mr Workman admitted that he had had no further communication with the Employment Appeal Tribunal between then and shortly before he re-transmitted the Notice of Appeal to the Employment Appeal Tribunal. The question arises as to who takes the risk when a document is allegedly sent to the Employment Appeal Tribunal and is not received. It seems to me, very clear, that it is the responsibility of an Appellant to get his Notice of Appeal to the Court. Posting may be a reasonable method of ensuring that that happens. But bearing in mind that there are known to be postal delays, if not, postal difficulties sometimes involving a non-delivery of the mail, unless the Notice of Appeal is acknowledged within a relatively short period of time, such as 14 days, the Appellant is acting unreasonably in pursuing his appeal, in the sense that he has not taken steps to ensure that the appeal has been received by the Employment Appeal Tribunal, in breach of his duty.

Mr Workman says that it is not the responsibility of a litigant to check that documents have been received by the Court. He says that is not reality. I disagree. It seems to me that it is the duty of the Appellant who wishes to make an appeal to satisfy himself that the document has been delivered, if there has been no communication at all from the alleged recipient.

In this case, very nearly six months elapsed between the date when the Notice of Appeal was sent and the date when there was communication with the Employment Appeal Tribunal. In those circumstances, it seems to me, that this is not an appropriate case for the exercise of discretion in favour of the Appellant.

In arriving at that conclusion, I have had regard to the helpful principles and guidelines set out in United Arab Emirates v Abdelghafar [1995] IRLR 243. It is a discretion which I must exercise on the basis of the short point which I have referred to. For the reasons I have attempted to give, I am not prepared to exercise my discretion to extend time. Far too long a period of time was allowed to elapse before the Appellants made proper enquiries to find out whether the appeal was being advanced and progressed, than was reasonable. The appeal is dismissed.