United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R THACKER (of Counsel) Appearing under the Bar Pro Bono Unit
For the Respondent	MR TOM WEISSELBERG (of Counsel) Instructed by The Officer of the Solicitor Department of Health Room 518 48 Carey Street London WC2A 2LS


 


MR JUSTICE LINDSAY (PRESIDENT)

1. I have here before me the Appeal of Mrs Valkova in the matter Valkova v The Benefits Agency Medical Service. Mrs Valkova has other Appeals which are not before me today and the papers relative to those other Appeals have not been seen by me, at any rate recently. They are certainly not in my mind.
2. On 10 October this matter was stood over for a further 6 days until today, the 16^th, in order that Mrs Valkova might obtain representation and I am particularly grateful to Mr Thacker appearing under the Bar Pro Bono Scheme today for the care with which he has attended to the matter and to the Bar Pro Bono Scheme for providing a representative that otherwise would not have been here to put forward Mrs Valkova's position.
3. I was concerned on 10 October because I had a letter from an eminent psychiatrist that said:

"I am concerned that in her fragile state an appearance before a Tribunal might have a seriously negative effect on her in terms of her emotional state."

And that is why the matter was stood over and, as I say, I am grateful to Mr Thacker.

4. The chronology needs to be borne in mind. On 14 March 1997 Mrs Valkova lodged an IT1 claiming disability discrimination, breach of contract and unlawful deduction from wages. There was then a substantial amendment to her IT1 and the IT3 was equally substantially amended. The hearing was fixed for 3 March. In February 1999 Dr Valkova made an application for an adjournment. That was refused and the hearing did go ahead on 3 March and she attended that day in the morning but failed to attend in the afternoon.
5. An Order was made requiring her to show cause why her IT1 should not, in the circumstances, be struck out. On the next day, 4 March, she was heard as to why her IT1 should not be struck out. On 9 March her Application was struck out and the decision was sent to the parties. It is the sending out to the parties that in general sets time running for the lodging of a Notice of Appeal.
6. On 23 March 1999 Dr Valkova applied for a Review. She then had solicitors acting for her. On 29 March the Chairman considered that application and declined to grant a Review. On 14 April the decision declining the Review was sent to Dr Valkova. Extended Reasons are fairly unusual in such circumstances but Extended Reasons were given; the Chairman had taken the view that no reasonable prospect of success existed for the review.
7. So, from 14 April 1999 the 6 weeks period during which Appeal was permissible against the Review decision (as opposed to the earlier substantive decision) began to run. On 15 April 1999 Mrs Valkova appealed against the other decisions, that is to say the decisions other than the Review decision, namely, the Order that she should show cause and the Order that she should be struck out. The Notice of Appeal then lodged did not relate to the declining of a Review. On 26 May the 42 days expired from the promulgation of the Review decision.
8. On 29 September there was a hearing at the Employment Appeal Tribunal under the chairmanship of His Honour Judge Hicks. The position is that precisely what was then said is or has been capable of misunderstanding but it seems to have been understood on the Valkova side that, unless she lodged a Notice of Appeal against the Review decision, the Appeals in the other cases would somehow be stymied.
9. The more likely, as it seems to me, indication that was given on 29 September would have been that, if she wished to appeal against the Review decision, then a Notice of Appeal directed to the Review decision would need to be lodged and that if, as perhaps was the case that day, it was indicated that she would wish to appeal against the Review decision, then the proper course would be for all 3 appeals to march together and accordingly that the other 2 should be adjourned generally so that they could be arranged to come together with the review appeal once it was in being.
10. Precisely what was done on that day is not clear. Mr Thacker says there has perhaps been some possible view on the Valkova side that unless the Review decision was appealed against then the other 2 could not proceed further, but, as I have said, that seems to me improbable. At all events, on 29 September it does seem to have been brought to Mrs Valkova's attention that a Notice of Appeal directed to the Review decision would be necessary.
11. On 5 November the Royal Courts of Justice Advice Bureau, having come in to assist Mrs Valkova, wrote a letter to the Employment Appeal Tribunal saying inter alia:

"We would accordingly respectfully ask the Employment Appeal Tribunal to consider the following:

1. That Dr Valkova be allowed to submit an Appeal against the Review decision of 29^th March 1999 out of time. We consider that it is likely that the grounds of appeal will be substantially the same as those already submitted by way of previous appeals and that accordingly the Respondent will not in any way be prejudiced;"

12. On 24 November Dr Valkova's Notice of Appeal against the Review decision was dated by her or on her behalf and on 29 November 1999 the Notice of Appeal against the Review decision was received by the Employment Appeal Tribunal, which is the point at which time stopped running. One can see that it was over 6 months late.
13. On 9 December 1999 the Employment Appeal Tribunal, as is its custom in such cases, sought the views of the Respondent as to whether there should be an extension or whether an extension would be agreed and on 4 January 2000 the Respondent's solicitors opposed any extension of time.
14. On 14 January the Employment Appeal Tribunal received final submissions from Mrs Valkova, prepared by the Royal Courts of Justice Advice Bureau and on 21 January the Registrar made an Order part of which reads as follows:

"AND UPON due consideration of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS and the fact the Appellant was fully aware of the time allowed to appeal and has had access to legal advice throughout and there has been shown no exceptional reason why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993

IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused"

That was 21 January. On 26 January Mrs Valkova appealed against the Registrar's Order.

15. On Mrs Valkova's behalf the Royal Courts of Justice Advice Bureau has put in a formal written argument and, of course, as I mentioned, I have had the benefit of hearing Mr Thacker as well. The Advice Bureau makes a number of points; one of which is this:

"In submitting the Appeal, the only error that occurred was procedural – the Appeal was titled as an appeal of the decision of 4th March 1999 when more properly the Appeal should have been an appeal against the Review Decision.

The Appeal was submitted within the relevant time limits. The Applicant could not have reasonably known that a further appeal was necessary."

16. But the form in which Notices of Appeal are made requires the Decision appealed against to be identified; thus it begins in print: "The Appellant Appeal from: and then in brackets and in italics the form says (Here give particulars of the Decision of the industrial Tribunal from which the Appeal is brought including the date.)" The other Notices of Appeal (not before us) can only be taken, (at any rate unless the contrary has been proved and it has not been) not to have mentioned that there was an Appeal against the Review decision, just as the Notice of Appeal which was received on 29 November clearly does refer only to the Review decision. What it says is:

"THE EMPLOYMENT TRIBUNAL REVIEW DECISION DATED 29 MARCH 1999, THAT THE APPLICANT'S APPLICATION FOR REVIEW OF THE TRIBUNAL'S DECISION TO STRIKE OUT HER CLAIMS IS REFUSED ON THE GROUNDS THAT IT HAS NO REASONABLE PROSPECT OF SUCCESS"

17. So that first ground advanced by the Royal Courts of Justice Advice Bureau really does not greatly assist. Moreover, the Advice Bureau misunderstands the position of the Employment Appeal Tribunal. It says this:

"Neither the Respondent nor the Employment Appeal Tribunal gave any indication prior to the hearing of the 29^th September 1999 that the Appeal was unsatisfactory. Should the Respondent have found defects within the Appeal and wished to challenge it, it should have done so after service of the Appeal. The Respondent failed to challenge the validity of the Appeal.

In addition, the Employment Appeal Tribunal appears to have failed to raise this issue prior to the hearing."

18. A party may or may not choose to appeal against a refusal to review. The Employment Appeal Tribunal had no reason to think that Mrs Valkova had not chosen not to appeal against the declining of a Review. If, as she did, she specially appealed against Decisions A and B, surely that could be taken to be an indication that she was content not to appeal against Decision C, and it is not for the Employment Appeal Tribunal to warn Appellants that they have not done what they might have chosen not to do, nor to reform a party's Notice of Appeal.
19. As to delay, once it had become clear to Mrs Valkova, or should have become clear to Mrs Valkova, that if she wished to appeal against the declining of a Review then she had to lodge a Notice of Appeal directed to it, in other words, delay since 29 September 1999, the Royal Courts of Justice Advice Bureau say this:

"With regard to the delay alleged by the Respondent following the hearing on 29^th September 1999. It was clear to the Applicant that there was considerable confusion both during and subsequent to the hearing. The Applicant and her advisers believed that it was necessary to seek clarification from the Applicant's former solicitors, and such clarification was sought by letter and telephone in early October 1999. The clarification sought was only provided towards the end of October 1999 and the request for an extension of time was put in on 5^th November 1999. Directions were provided by way of letter from the EAT on 8^th November 1999, and the Notice of Appeal submitted two weeks after receipt of this letter. The Applicant would submit that, in the circumstances, that there was no unreasonable delay in making her submissions following the hearing."

20. But, there would seem to be no good reason at all why at least a summary form of Notice of Appeal should not have been lodged well before 29 November 1999. Indeed, even after 29 September the period taken was longer than the 42 days allowed for in Notices of Appeal generally where the starting point is the sending out of the decision. The Advice Bureau argues that the Respondent suffered no prejudice but that is no answer of itself. It then embarks on a view of the merits of the proposed Appeal but the merits in such a case as the one before me are fairly peripheral unless one can readily see that the Appeal, if it is permitted to go ahead, is clearly likely to succeed or clearly likely to fail. I can not describe my view of the merits, on such a short familiarity with them as I have gained only in the course of this part of the case, as tending towards a view that the Appeal would be likely to succeed.
21. I shall not set out all the considerations in the familiar case of AbdelGhafar which is referred to in the Registrar's Order. In the more recent case of Aziz v Bethnal Green in the Court of Appeal it was argued that the relatively strict line taken in such matters by the Employment Appeal Tribunal was even stricter than the line taken in comparable cases in the Court of Appeal but the Court of Appeal in its decision did not in any way disapprove of that stricter line and did approve of the guidelines set out in the AbdelGhafar case. There are many cases where Notices of Appeal are struck out even on delays as short as 1 day and here the period is long and is poorly explained. There is, in my view no exceptional circumstance made out enabling me to extend time and accordingly I shall dismiss the Appeal.
22. There is said to have been some confusion in relation to the other Appeals. I have not got the papers, as I mentioned, and have not any familiarity with the other appeals. On the face of things, now that this appeal goes no further, it is hard to see why they should not now proceed if previously they were adjourned so that they could march with this appeal. Thus, subject to any particular circumstances that neither Mr Weisselberg for the Respondent here today nor Mr Thacker nor I can see, subject to extraordinary circumstances, those other Appeals should now to go to a Preliminary Hearing, but that is not to say that the Respondent, the Benefits Agency Medical Services, will not be able to raise special circumstances in those cases if there are special circumstances in those cases. Referring simply to today's business, I dismiss the Appeal.