United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ADEYEMI FELIX (Representative) City Legal Associates Wickham House 10 Cleveland Way London E1 4TR
For the Respondent	Respondent neither Present Or Represented


 


JUDGE CLARK

1. Mr Omisore brought a claim of unfair dismissal against his former employer, the Respondent Royal Borough of Kensington & Chelsea by an Originating Application presented to the Employment Tribunal on 28 May 1999. That complaint was heard by an Employment Tribunal sitting at London (North) on 2 December 1999. It was dismissed by a decision with extended reasons promulgated on 10 December 1999.
2. Well within the time for appealing, on 19 December, the Appellants representatives City Legal Associates posted a Notice of Appeal, by first class post, to the Employment Appeal Tribunal. It did not arrive. No acknowledgement of receipt of the Notice of Appeal from the Employment Appeal Tribunal was received by those representatives. They did not follow the matter up before the expiry of the 42-day time limit, that is on the 21 January 2000. An enquiry was finally made of the Employment Appeal Tribunal by telephone on 31 January. The Appellants advisers were told that the application had not been received and were invited to fax a copy with a covering letter. That was done the following day.
3. An application for an extension of time for appealing was considered and refused by the Registrar by order dated 9 March 2000. Against that order this appeal is brought.
4. The basis of the appeal, set out in a skeleton argument prepared on behalf of the Appellant, is that the Appellant and his advisers were entitled to rely on the presumption of due delivery by post contained in Rule 35(3) of the Employment Appeal Tribunal Rules. Rule 35(3) provides that every document served by post shall be assumed in the absence evidence to the contrary to have been delivered in the normal course of post. I am satisfied that that presumption is displaced. The original Notice of Appeal did not arrive at the Employment Appeal Tribunal.
5. In these circumstances the question is whether the Appellant has provided a full, honest and acceptable explanation for the delay in appealing. See Aziz –v- Bethnal Green City Challenge Co Ltd (2000) IRLR 111 approving the judgment of Mummery J in United Arab Emirates –v- Abdelghafar (1995) ICR 65. I am satisfied that the original Notice of Appeal was posted within time. Is non-delivery by the post office an acceptable explanation for the delay in these circumstances?
6. I have considered the analogous position where an originating application is posted well within time to the Employment Tribunal but does not arrive at the Tribunal offices. It is clear from the cases of Capital Foods Retail Ltd –v- Corrigan (1993) IRLR 430 and Camden & Islington Community Services NHS Trust –v- Kennedy (1996) IRLR 381, that it is for the Appellants representatives, in these circumstances to show that he has taken all reasonable steps to see that the application has been received in time, including carrying out a check with the Employment Tribunal. In both those cases findings by an Employment Tribunal that it was not reasonably practicable for the originating application to be presented within time were reversed by the Employment Appeal Tribunal.
7. Applying those principles to the instant case it seems to me, bearing in mind the risk of post going missing particularly over the Christmas period, that it was for the Appellants representative to check that the Employment Appeal Tribunal had received the Notice of Appeal before the time limit for appealing expired on 21 January, no acknowledgement having been received from the Employment Appeal Tribunal in the meantime. They did not do so; there is no explanation for that failure.
8. In further support of the appeal Mr Felix points out that it is the Appellant himself who will suffer if the appeal is not allowed to proceed and that is an unfortunate consequence. However the individual party is fixed with the actions or omissions of his representative. Further Mr Felix submits that it is in the public interest for this appeal to be permitted to proceed. It seems to me that there is also a public interest in time limits for appealing being properly observed. Finally he submits that this is an appeal with merits so far as the substance of the underline appeal is concerned. It was made clear in Abdelghafar that the merits of the substantive appeal are of little, if any significance when considering the question of extension of time.
9. Having taken all these matters into account I am not satisfied that the Appellant, through his advisers has provided an acceptable explanation for the default in this case; consequently I shall dismiss this appeal.