United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MS A MORGAN (of Counsel) Instructed By: London Borough of Camden Town Hall Judd Street London WC1H 9JE


 


MR JUSTICE LINDSAY (PRESIDENT): I have an appeal before me in the matter Miss A.F. Ogunkoya against two Respondents, London Borough of Camden and Mr R. Knell. The learned Registrar has declined to grant further time for the lodging of a Notice of Appeal and the appeal of Miss Ogunkoya is to overturn that decision.

1. On 21 December 1998 Miss Ogunkoya lodged an IT1 claiming racial discrimination and cruelty against the two Respondents, Mr Knell and the London Borough of Camden. There was a response by way of IT3 and that led to a hearing at London (North) on 7 and 8 September 1999. Miss Ogunkoya had expected, I think, that she would be attended by or assisted by or even represented by someone from her Union, UNISON, but in the event and, despite that being her expectation, she had to address the Tribunal in person. She also has been in person today, whereas Camden and Mr Knell appeared by Ms Morgan.
2. On 28 September 1999 the decision was sent to the parties and it was that the allegation of racial discrimination was dismissed. There was, of course, no separate decision as to cruelty because that was not truly a separate cause of action.
3. So the position was that Miss Ogunkoya had six weeks from 28 September 1999 in order to lodge a Notice of Appeal. That six weeks expired on 9 November and the Notice of Appeal was not received until 12 November, three days late.
4. As is the usual practice at the EAT, on 26 November 1999 the EAT said that an application for an extension of time would be necessary. On 8 December such an application on Miss Ogunkoya's part was received and, again, as is usual, the EAT sought the views of the Respondent and on 19 January, Camden indicated that it resisted the application. On 2 February 2000 the Registrar declined to extend time and two days later Miss Ogunkoya telephoned to say that she wished to appeal.
5. The delay is plainly short, only three days, but on the other hand, as the recent case of Aziz in the Court of Appeal indicates, this Tribunal has a strict attitude towards extension of time, perhaps stricter even than the Court of Appeal in that Court's own matters and three days, although short, certainly cannot be overlooked.
6. Is there a good explanation as to why Miss Ogunkoya failed to lodge a Notice of Appeal in time? One suggested explanation is her medical state. Although there are some indications in the bundle of papers put in front of me as to her medical or psychiatric state at various times, they do not relate to the period to which they need to relate, 28 September 1999 to 9 November 1999. There is no medical evidence whatsoever that relates to that period but rather such as there is relates to periods earlier, and in some times considerably earlier; I thus do not think I am in a position to rely upon a medical ground in this case.
7. The other principal explanation is that Miss Ogunkoya did not wish to appeal without, as she saw it, having a good foundation for the appeal and accordingly, with a view to getting that good foundation, as she hoped, she made contact with Camden Racial Equality Council, hoping to get confirmation from them of some facts which she thought would be relevant to her case. But Camden Racial Equality Council, she says, substantially delayed their response for various reasons and that awaiting an adequate response from them led to the period having expired by the time she was in a position to have sent the Notice of Appeal.
8. There is a difficulty about that. Miss Morgan claims that the timing is such that, in any event, Miss Ogunkoya did not make any adequate approach to Camden Racial Equality Council until several weeks into the six weeks period and that therefore, at most, the Racial Equality Council's delay explains only the latter part of the six weeks. As to that Miss Ogunkoya says that she made prompt contact and many, many telephone calls and was passed from person to person and was delayed also by holidays.
9. I am not prepared to assume against Miss Ogunkoya that she did not make a prompt approach to Camden Racial Equality Council but the overriding difficulty in this area is that there was no good reason to await their response before lodging a Notice of Appeal. Miss Ogunkoya recognises that a point of law needs to be asserted in order to have a good appeal and it is hard to see how Camden Racial Equality Council could have contributed to the proof or strengthening of a point of law in relation to the earlier decision. In general one does not need further facts with which to assert an earlier error of law and I cannot see that it was right to await Camden Racial Equality Council's response before getting on with the real job in hand, which was the lodging of a formal Notice of Appeal. I do not therefore see there to be a good explanation of why Miss Ogunkoya did not lodge a Notice of Appeal within the six weeks period.
10. The merits of any prospective appeal only pay a small part in decisions of this kind: see the reasoning in Abdelghafar, as reaffirmed in the Court of Appeal's recent decision in Aziz. But I think I am entitled to look briefly at the merits of the appeal although not with a view to determining whether Miss Ogunkoya has really a strong case or not in any detail. However, when I do look at the grounds of appeal and the reasons why Miss Ogunkoya wants to take the matter forward, I am bound to say what appears is not so much any point of law but rather a hope or wish on Miss Ogunkoya's part to lay before a Tribunal re-hearing her case a body of evidence that was not called before, evidence that might indicate that Camden or its representatives or Mr Knell had been lying at the first hearing or evidence that might bolster a holding that she had been telling the truth at that first hearing.
11. That sort of case does not include points of law; it more goes to facts which, of course, should have been laid before the Employment Tribunal first time round, so to speak. Insofar as the merits of the prospective appeal can be taken into account I would have to regard this as a case which, at most, had a very, very weak prospect of success. But, leaving aside the merits and reverting simply to whether a good reason is shown for failure to lodge within the six weeks period, I have not seen there to be a good explanation given to me and accordingly I must dismiss the appeal.