United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the First and Second Respondent	MR A JONES (Solicitor) Instructed By: Messrs Dibb Lupton Alsop Solicitors Windsor House Temple Row Birmingham B2 5LF


 


MR JUSTICE LINDSAY (PRESIDENT): I have before me an application in the matter Miss L.G. Macaskill against two Respondents, (1) Mr D.S. Slabbert and a company, (2) Bearing Power International Plc. Miss Macaskill has appeared before me in person this morning and Mr Jones has appeared on behalf of both Respondents. What I am concerned with is an appeal against the decision of the learned Registrar that time should not be extended for the reception of a Notice of Appeal.

1. I need first of all to say something of the chronology of the matter.
2. On 24 April 1998 Miss Macaskill lodged an IT1 claiming sexual harassment and discrimination. The period of employment alleged was very short, some three days or so.
3. On 26 May 1998 the Respondents lodged an IT3. They denied the events complained of but also, in effect, denied any connection between the United Kingdom and Miss Macaskill's case. They said that she was employed to work in Singapore and had been engaged to do so in South Africa and, indeed, Miss Macaskill has an address in Johannesburg.
4. There was a preliminary hearing to deal with the question of jurisdiction on that account, namely that there was no sufficient connection with the United Kingdom.
5. On 1 December 1998 there was a hearing before a three-person panel of the Employment Tribunal and on 11 December 1998 the Decision was sent to the parties. It was a unanimous decision of the Tribunal that it had no jurisdiction to deal with the claim. The matter had been heard by Mr A.B. Rees, Mrs Blundell and Mr Dardi at the Tribunal at Birmingham and the decision as promulgated, beneath the word DECISION and the brief decision that "The unanimous decision of the tribunal is that it has no jurisdiction" continued with EXTENDED REASONS and reasons of that character were then given. The matter is stamped as having been sent to the parties on 11 December, as I indicated.
6. The usual practice of the Employment Tribunals generally (and there is no reason to think it was departed from in this case) is to send out to the parties a booklet headed "Notes on Tribunal Decisions" which at its paragraphs 16 to 19 inclusive, deals with the subject of "Appeal Against Tribunal Decision". It says, at paragraph 16, that the appeal has to be on a point of law only. It indicates that there is an official appeal form that can be obtained from the Registrar at the EAT, for which an address is given, and in heavy type it says in paragraph 18:

"The Notice of Appeal must be served on the Employment Appeal Tribunal within 42 days of the date on which the extended written reasons for the decision, which is the subject of the appeal, were sent to you".

7. It is important to notice that the clock starts running when the decision is sent, rather than when the decision is received, but then there is a relatively generous 42 days given to any prospective appellant. It says also that the date on which the matter is sent is shown on the last page of the document giving the extended written reasons, as indeed it was.
8. In the course of their Extended Reasons the Tribunal say:

"10. … After considering all of the evidence and the facts the tribunal is satisfied that the intended employment of the applicant was clearly not at an establishment in Great Britain and insofar as she was concerned it was intended that her work should be wholly or mainly outside Great Britain, namely in Singapore."

A little later, they say:

"Insofar as the applicant is concerned the tribunal find as a fact that, under the provisions of Section 10 of the 1975 Act, her actual work for both the first respondent and the second respondent would have been wholly or mainly outside Great Britain, and she was not employed at an establishment in Great Britain.

11. In all of the circumstances, therefore, the tribunal has no jurisdiction to hear the complaint in this case.

That, as I say, was sent out to the parties on 11 December 1998.

9. On 29 December 1998 Miss Macaskill wrote to the Chairman of the Employment Tribunals and the letter begins:

"LG MACASKILL V D S SLABBERT

The above matter, heard on 1 December 1998, bears reference.

This serves to confirm that I am in receipt of your correspondence, stamped and signed on 11 December 1998."

And so, plainly, she was conscious of the fact that that was the date which purported to be the date on which the matters were sent out to the parties because that is what the stamp says. She continued:

"However, please note that the document was only faxed to me on 22 December 1998. In terms of the deadlines ruling a potential appeal to the final decision, I therefore have until 5 January 1999 should I request extended reasons as to the decision, and not until 25 December 1998 as per your correspondence."

10. It is a confusing reference because the time for appeal is 42 days from 11 December 1998 and the reference to a deadline expiring on 5 January is incorrect on any footing, at any rate if it is thought to refer to time for a Notice of Appeal to be lodged. There may well have been some confusion in Miss Macaskill's mind between time for a Notice of Appeal, time for a Review and, possibly, time for a request for Extended Reasons, the last of those being particularly confusing because the reasons were already marked as "Extended". But the point that Mr Jones makes in reference to the short paragraph in the letter of 29 December (which I have just read) is that plainly guidelines had been brought to Miss Macaskill's attention and there is no reason to think that they came to her attention otherwise than by receipt of the usual official form, which I have described, which it makes it plain that the period for an appeal is 42 days from the sending of the judgment. No other source of deadlines has been asserted.
11. On 15 January 1999 those six weeks expired. However, it was not until 7 December 1999 that a Notice of Appeal was dated by Miss Macaskill and it was not until 9 December 1999 that the Notice of Appeal was received. The Notice of Appeal is in handwriting which I take to be Miss Macaskill's and is dated 7 December and was received on the 9^th as I indicated.
12. On 13 December 1999 the EAT, as is its ordinary practice, indicated that as the Notice of Appeal was out of time an application would need to be made to ask for an extension of time and that reasons would have to be given.
13. On 10 January 2000 a request was made for an extension of time and Miss Macaskill asserted that she had not been aware of the 42 day provision. A letter of the 10^th says:

"I was unaware of the 42-day time limit and apologise for any inconvenience this may have caused. I was not provided with any documentation or advices by the Employment Tribunal regarding this time limit."

Given the nature of her earlier letter, one is entitled to regard that with some scepticism.

14. On 10 January, on the same day in other words, the EAT, as is again its usual practice, sought the views of the Respondent. On 14 January the two Respondents resisted any extension and gave reasons for that resistance and on 26 January Miss Macaskill wrote purporting to answer those grounds of opposition by the Respondents and she says, inter alia:

"I hereby apologise for my oversight in respect of the final deadline to appeal to the Appeals Tribunal."

A little later, she said:

"With having read the guidelines in terms of deadlines, I repeatedly contacted the Tribunal requesting responses to my letters, and often had to wait months before receiving acknowledgement of same."

And that is a reference to events which she has set out in a helpful table handed in this morning that deals with a number of dealings, chiefly with the Employment Tribunal rather than the Employment Appeal Tribunal, over the period December 1998 to February 2000.

15. On 31 January the Registrar refused an extension of time and on 15 February Miss Macaskill appealed.
16. That is the chronology of the matter. I have been able to see no good reason for delay during the most relevant period of all, namely the period between the sending out of the decision in December 1998 and the six weeks from that date. True it is that there appears to have been loss of files, confusion about papers, and delays in communication at later times and Miss Macaskill's table begins chiefly with the date, 8 February 1999 but, of course, by then the six weeks' period had long expired and it does not seem to me that thereafter any office delays and, more particularly, office delays on the part of the Employment Tribunal rather than the EAT are of any real significance to the question.
17. An extremely compelling reason would need to be given to explain the long delay in this case and neither in the most material period to which I have drawn attention, nor subsequently do I find a good reason for not lodging a Notice of Appeal with the Employment Appeal Tribunal. Moreover, there is, as I have mentioned, some real reason for doubting in Miss Macaskill's candour in her explanation that guidance had not been received because it does seem that as time passes she changes from not having received guidance, as being her case as to receiving it but misunderstanding it. I remind myself of the leading cases in this area, the Abdelghafar case, recently upheld by the Court of Appeal in a case called Aziz. It is the case here that, at the Employment Appeal Tribunal, a relatively strict line is taken upon Notices of Appeal and the time prescribed for them. I am entitled, to some limited extent, to have regard to the merits of the Notice of Appeal. Plainly they cannot be fully investigated because otherwise one would have an appeal in order to ascertain whether there could be an appeal, which would be an absurd situation. But having looked at the Notice of Appeal and the facts as found by the Tribunal and the conclusion of the Tribunal, it seems to me that Miss Macaskill is certainly not advancing an appeal that has manifestly obvious prospects of success and, indeed, in one of her letters she appears to accept that the jurisdictional issue presents her with deal difficulty. I have considered the chronology. I have considered the reasons advanced by Miss Macaskill this morning and in the correspondence. I remind myself that ignorance of the time limit is itself, even when candidly explained, no sufficient ground for an extension of time and to the very limited extent that I have mentioned, I have in mind also on the merits that it seems to me that this is not an appeal with any glittering prospect of success. All in all, I must dismiss the appeal.
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APPLICATION FOR COSTS

18. I now have in front of me an application for costs made by Mr Jones on behalf of the two Respondents against Miss Macaskill. He bases the application on the Rule and the parts of the Rule that provides that there can be an order for costs where there has been conduct of the kinds here described. The particular labels which Mr Jones wishes to apply to Miss Macaskill's conduct in relation to this case are that the application was unnecessary, possibly, he says, vexatious and that there has been unreasonable conduct on her part and unreasonable delay on her part.
19. So far as concerns whether the proceedings were unnecessary, I cannot hold them to have been unnecessary in the sense that it is not a duplication or unnecessary in any sense such as that and, indeed, if Miss Macaskill wished to pursue her appeal, it is the only way in which she could set about it.
20. Nor do I find there to be evidence of her acting vexatiously.
21. There is a hint in an earlier letter that the Respondents thought her behaviour mischievous, which could be close to vexatious, but there is, in fact, no evidence that backs that up and I do not feel that I can describe her conduct as vexatious.
22. Has she been guilty of unreasonable conduct or unreasonable delay? Of course, delay is the very issue which we have been dealing with. I do not think it adds anything to seek to describe her chronology as involving unreasonable delay on her part. More generally though, the chief allegation, it seems to me, is that her conduct has been unreasonable. She has, says Mr Jones with some grounds, persisted with an allegation that has proved groundless in the sense that having begun her case, as it would seem, on the basis of her not having received guidelines as to the 42 days available, she later changes her tack and claims rather to have misunderstood the guidelines that she had received. That earlier ground, said Mr Jones, she must have realised was not a ground that could candidly be relied upon and, of course, she has gone ahead and lost.
23. However, it does seem to me that I am entitled to bear in mind that her correspondence does exhibit a degree of confusion. The particular confusion at the earlier stage I noted was as to the possibility of the reasons not having been given in an extended form and the possibility of confusion between the period appropriate for a review and the period appropriate for an appeal. Lay people are often confused and I think I am entitled to bear in mind that a person who is confused might have her actions described as "unreasonable" by those who truly know the rules but that they are, for all that, confused rather than unreasonable. She has appeared throughout in person. There is a hint of advice from an official body at one stage but there is no evidence that that was given to her and bearing in mind that, if she wished to pursue the appeal at all, she had to do as she has done and that she has been confused and that her lack of candour, although suspected, has not been truly proved, I think I am entitled not to regard her conduct as unreasonable but rather as misguided or confused. All in all, I do not think this is an appropriate case for an order for costs.