United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	In Person
For the Respondent	MS E ANDREWS (of Counsel) London Borough of Houslow Civic Centre Lampton Road Hounslow Middlesex TW3 4DN


 


JUDGE CLARK

1. Mr Jones was employed by the Respondent Council from 1 September 1991 until his dismissal on 31 August 1993, as a teacher at Busch House School.
2. Following his dismissal he presented a complaint of unfair dismissal to the then Central Office of Industrial Tribunals on 30 November 1993. That application came on before an Employment Tribunal sitting at London (North) in March 1996.
3. The Employment Tribunal found that his dismissal was unfair. Against that decision the Respondent appealed to the Employment Appeal Tribunal (591/96). That appeal came on for hearing before a division presided over by Judge Pugsley on 21 November 1997. By a judgment delivered on 4 March 1998, the Employment Appeal Tribunal allowed the appeal and remitted the case for rehearing before a fresh Employment Tribunal.
4. The rehearing took place before an Employment Tribunal sitting at London (North) (Chairman: Miss A M Lewzey) on 23-25 February 1999. By a decision with extended reasons promulgated on 16 March 1999, that Employment Tribunal dismissed Mr Jones' complaint. They found that he was dismissed by reason of redundancy and that dismissal was fair.
5. The time for appealing against that decision expired on 23 April 1999 (a Friday). On that day it seems the Mr Jones telephoned the London (North) Regional Office to discover their fax number. He was given the number and faxed to that office his Notice of Appeal prepared on EAT Form 1, which he had earlier obtained from the Employment Appeal Tribunal. He did not send or fax a copy of the Notice of Appeal to the Employment Appeal Tribunal on that day.
6. Mr Jones took no further steps until the 7 September 1999, when he telephoned the London (North) Office. As a result of that telephone call he wrote to London (North) on 8 September 1999. On 10 September 1999, London (North) replied, informing him that they could not deal with his appeal. He must contact the Employment Appeal Tribunal.
7. On 11 September 1999, Mr Jones wrote to the Registrar, enclosing a copy of his Notice of Appeal. Thus, the Notice of Appeal was finally received by the Employment Appeal Tribunal on 14 September 1999, 140 days out of time.
8. Mr Jones applied for an extension of time for appealing. That application was opposed by the Respondent's solicitor by a letter dated 26 October, setting out detailed grounds of opposition. To that letter Mr Jones responded on 9 November 1999.
9. Having considered the representations of the parties, on the 15 November 1999 the Registrar refused to extend time for appealing. Against that order Mr Jones appeals to me.
10. I accept what he tells me, that is, that when he received the Employment Tribunals decision, dated 16 March 1999, there was enclosed the Employment Tribunals standard notes on the Employment Tribunals decision. Paragraph 18 of those notes, advises

"The Notice of Appeal must be served on the Employment Appeal Tribunal within 42 days. That is under the heading Appeal against Tribunal Decision."

11. Mr Jones accepts that he was aware of the need to appeal to the Employment Appeal Tribunal within 42 days of the decision being promulgated. However, this is a long saga. He tells me that after the first Employment Tribunal decision in 1996, he was in contact with that Tribunal about a possible appeal by the Respondent. His experience of Employment Tribunals, over some 6 years led him to conclude that there was liaison between the Employment Tribunal and the Employment Appeal Tribunal and consequently a Notice of Appeal faxed within time to the Employment Tribunal would be passed to the Employment Appeal Tribunal and that would be good service. Sadly for him that is not correct and as he acknowledges, he made a mistake.
12. The Respondent relies on the guidance of Mr Justice Mummery, then President, in United Arab Emirate –v- Abdelghafar [1995] ICR 65. At page 72(C) of the report, the former President said this

"questions to be addressed by the Employment Appeal Tribunal, the parties and their representatives are:

(a) what is the explanation for the default?

(b) does it provide a good excuse for the default; and

(c) are there circumstances which justify the tribunal taking the exceptional step of granting an extension of time?"

13. I accept the explanation put forward by Mr Jones, namely that he mistakenly sent his Notice of Appeal, on the 42^nd day to the Employment Tribunal offices by fax and did not, at the same time fax a copy to the Employment Appeal Tribunal. The question for me is whether that explanation provides a good excuse for the default. Sadly for Mr Jones, I am driven to conclude that it does not. In the same case of Abdelghafar, Mr Justice Mummery set out examples of excuses which were not regarded as acceptable in earlier cases. One of them is prior notification to the Appeal Tribunal or the Industrial Tribunal or to the successful party of the intention to appeal.
14. It seems to me that by faxing a copy of the Notice of Appeal to the Employment Tribunal, he was doing no more than informing the Employment Tribunal of his intention to appeal. That is how it would appear to the Employment Tribunal staff.
15. Where an intelligent litigant who has already been through the Employment Appeal Tribunal procedure, albeit, as a Respondent; is provided with notes which state in terms that the Notice of Appeal must be served on the Employment Appeal Tribunal within 42 days; where he was aware of the address of the Employment Appeal Tribunal, having obtained a copy of the Employment Appeal Tribunal Form 1, in blank from this Tribunal, it seems to me that it cannot be said that there is any good excuse for his default in sending the Notice of Appeal, effectively to the wrong place.
16. In these circumstances I am of the view that there are no exceptional circumstances which permit me properly to extend time in this case and accordingly the appeal must be dismissed.