United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS LORNA FINDLAY (Legal Officer) Royal College of Nursing Legal Services Dept 67-69 Harborne Court Harborne Road Edgbaston Birmingham B15 3BU
For the Respondents	MS FARAH MAULADAD (of Counsel) Instructed By: Ms J Sapeta Messrs Bevan Ashford Solicitors 35 Colston Avenue Bristol BS1 4TT


 


MR JUSTICE LINDSAY (PRESIDENT): I have before me the appeal of Mrs Margaret Thomas in the matter Thomas against the Bath and West Community NHS Trust. Mrs Thomas appeals against the Registrar's refusal to extend time for the lodging of her Notice of Appeal, which was some eight days late.

1. Before me today I have Ms Lorna Findlay of the Legal Services Department at the Royal College of Nursing, acting for Mrs Thomas (the Royal College of Nursing having supported Mrs Thomas's case) and, on behalf of the NHS Trust, I have Ms Mauladad. It is necessary to say something in some detail of the chronology of the matter.
2. On 13 September 1999 Margaret Thomas lodged an IT1 complaining of "action short of dismissal". She claimed to have suffered a detriment by reason of having earlier made a protected disclosure, a complaint within 47(B) of the Employment Rights Act 1996; 47(B) was brought into effect on 2 July 1999. Her IT1 named Mr Ron Elvins at the RCN as her representative and, as I mentioned, the RCN has run her case for her.
3. On 8 November 1999 the NHS Trust lodged an IT3 which took the point, inter alia, that there was no jurisdiction on the Employment Tribunal's part to hear the complaint, the relevant events of which, it claimed, had occurred before 2 July 1999 and where any alleged detriment it claimed was also suffered, if at all, before the Act took effect. So in that sense a jurisdictional issue arose. I have not seen quite how it was framed but there was a hearing on 3 December 1999 at the Employment Tribunal at Bristol before a three-person panel. Then on 4 January 2000 there was a unanimous decision of the Tribunal sent to the parties. The unanimous decision of the Tribunal was that Mrs Thomas's application was dismissed. Amongst the reasons given in the Extended Reasons was this, at paragraph 9:

"9. On the applicant's own arguments, therefore, it is our view that she could not have been subjected to a detriment after the commencement date of Section 47(B) on which she relies. In those circumstances we find that the Tribunal would have no jurisdiction to entertain her claim."

4. A Notice of Appeal exists which bears date 4 February 2000. It is signed by Ms Findlay as Legal Officer of the Royal College of Nursing, the Appellant's representative. There is a letter which has the appearance of a covering letter in existence from the Royal College of Nursing which bears date 4 February 2000, also signed by Ms Findlay, that is addressed, on the face of things, to the Registrar at the Employment Appeal Tribunal, Audit House and it gives the correct address. It is headed "Mrs M Thomas v Bath and West Community NHS Trust":

"Please find enclosed Notice of Appeal together with a copy of the Bristol Employment Tribunal's Decision dated 4^th January 2000."

5. On 11 February 2000 that covering letter, either alone or accompanied by the Notice of Appeal, also bearing date 4 February 2000, was received at the Regional Office of the Employment Tribunals in Birmingham. I say that because the letter of 4 February is stamped "Employment Tribunals, Received on 11 February 2000, Regional Office, Birmingham". It must in some way have been sent, we do not know precisely how, presumably by post, from the Employment Tribunals Regional Office at Birmingham to the Bristol Office because it also bears the stamp "Employment Tribunals, Received on 14 February 2000, Bristol". It is only the covering letter that is so stamped. The copy of the Notice of Appeal in my papers bears no stamp as received by anyone.
6. On 15 February 2000 the 42 days from the sending-out of the unanimous decision on 4 January expired and by that date the Employment Appeals Tribunal had not received it.
7. On 21 February the Bristol Office of the Employment Tribunals presumably returned a Notice of Appeal to the Royal College of Nursing. There is a letter of 21 February to Ron Elvins at the Royal College of Nursing in Exeter, headed "Mrs M Thomas v Bath and West Community NHS Trust", from the Regional Office of the Employment Tribunals in Bristol and says:

"Thank you for your letter dated 4 February 2000 which we have returned, as it appears to have been sent to us in error."

And it is signed on behalf of the Regional Secretary to the Tribunals. It does not actually say that a Notice of Appeal was returned but that may have been the case.

8. On 22 February 2000 the Royal College of Nursing, South Western Region, received that communication from the Employment Tribunals in Bristol; that is indicated by a stamp on the letter of 21 February, saying "Royal College of Nursing, South Western Region, Received 22 February 2000".
9. On 23 February the EAT at last received a Notice of Appeal. That appears from the fax header to the Notice of Appeal which had been signed, as it would seem, by Ms Findlay on 4 February 2000. It says at the very top 23/02/00 Wednesday 17:46 and gives a fax number, seeming to have been sent from Exeter. Strangely, the Notice of Appeal (at any rate the copy of it in my papers) bears no stamp as being received by the EAT, although it plainly was. There is a letter from the EAT of 6 March, the second paragraph of which says:

"It [referring to the Notice of Appeal] was received here on the 23 February 2000 and is therefore 8 days out of time."

10. The EAT, in other words, was following its conventional course when a Notice of Appeal is received out of time, telling the prospective Appellant that if they wished they could mount an application for an extension of time.
11. On 6 March, as I have mentioned, the Royal College of Nursing was told of the fact that the Notice of Appeal was eight days out of time and on 13 March the Royal College of Nursing applied for an extension of time and set out the chronology, or the alleged chronology, of the matter. As its practice the EAT on receiving that then sought the views of the Respondents, in other words the NHS Trust.
12. On 17 April the EAT received the Respondents' opposition to any extension. On 8 May the Royal College of Nursing replied to the Trust's submissions and on 17 May the Registrar made an order which includes the following:

"AND UPON DUE CONSIDERATION of paragraph 3(1) of the Practice Direction (Employment Appeal Tribunal – Procedure) where it is clearly the responsibility of the Appellant to ensure that an appeal is submitted to the Employment Appeal Tribunal within 42 days

AND UPON CONSIDERATION of the fact that the Appellant had access to legal advice where the procedure regarding the importance of time allowed in which to appeal is well known

AND UPON DUE CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS 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."

13. Shortly thereafter, on 18 May, in fact the very next day, the Royal College of Nursing wrote to the Employment Appeal Tribunal indicating that they wished to appeal against the order refusing an extension of time and on 28 September the Royal College of Nursing sent in its skeleton argument to the EAT and both sides are represented, as I have indicated, before me today.
14. The parties do not differ greatly on the law which is to be found in the case of United Arab Emirates v Abdelghafar [1995] ICR 65 EAT and, more recently, in Aziz v Bethnal Green [2000] IRLR 111 CA. In the Aziz case it was seen by the Court of Appeal that EAT's practice could be argued to be stricter in terms of requiring truly timely compliance with the applicable rules than was the practice of the Court of Appeal itself under its corresponding rules, but the Court of Appeal did not say that the EAT's stricter practice was on that or any other account improper or undesirable, and the EAT's strict view emerged unscathed. It is the case that there are many instances where appeals have been struck out for being even one day late.
15. In her argument on behalf of Mrs Thomas, Ms Findlay on behalf of the Royal College of Nursing first of all cited a passage in Abdelghafar as follows. She says, at page 70 B to C of Abdelghafar, Mummery J states that:

"… The exercise of the discretion is a matter of weighing and balancing all the relevant factors which appear from the material before the appeal tribunal. The result of [an exercise of] a discretion is not dictated by any set factor …"

And then she adds, by way of her own comment:

"Previous cases are therefore of limited value in deciding the case in hand".

16. It may be necessary to dissent from that last comment – see Abdelghafar at page 69 G to H, as Ms Mauladad draws attention to, but that passage from the Appellant's skeleton argument, in fact, is more by way of background rather than amounting to any independent argument assisting the Appellant and so it is not necessary to go further into the possible difference between the parties under that heading.
17. Next Ms Findlay argues that as the case in hand was decided not at a full merits hearing, she said, but on a jurisdictional point, then the weight to be attached to the need for finality is lower than it otherwise would be. She says:

"The principle of finality of proceedings would therefore, it is submitted, not be offended by an extension of time in this case. Indeed, Abdelghafar itself is a case where there was no good excuse for the default but time was nevertheless extended because of the jurisdictional issues involved – see page 72G of the report."

18. I fail to see why that should be so. Moreover, the reason why leave was eventually given in Abdelghafar was for the quite exceptional reason that in that case the Employment Tribunal had been under a positive duty imposed by statute, a duty to examine an issue even if the parties had not themselves referred to it. At page 74 of the report of Abdelghafar in the ICR it says:

"The overriding duty of the court, of its own motion, is to satisfy itself that effect has been given to the immunity conferred by the State Immunity Act 1978. That duty binds all tribunals and courts, not just the court or tribunal which heard the original proceedings. If the tribunal in the original proceedings has not given effect to the immunity conferred by the Act, then it must be the duty of the appeal tribunal to give effect to it by correcting the error. The alleged error of the tribunal cannot be corrected in this case unless an extension of time to appeal is granted to the employers. The employers have shown that there is a reasonably arguable case that the industrial tribunal failed to apply the law of state immunity correctly. That makes this an exceptional case for an extension of time."

That was plainly a most unusual case and there is nothing remotely equivalent to it in our case.

19. Next, Ms Findlay argues as follows. She says:

"Whilst oversight of time limits and prior notice of intent to appeal are not good enough, this case can be distinguished by the fact that a properly constituted Notice of Appeal was in fact received by two different Employment Tribunals within the time limit."

I fail to see why the receipt of the Notice of Appeal by an inappropriate person should be taken to justify delay in sending it to the appropriate person.

20. Then there is, in effect, an argument that part at least of the delay was attributable to the Employment Tribunal's failure earlier than it did to recognise that it had been sent a Notice of Appeal that truly should have been sent to the EAT and to have told the Royal College of Nursing of that mistake. But the Employment Tribunals have work enough dealing with the papers that should be sent to them and to expect a prompt attendance by them to documents that need not have been sent to them and as to which they have no duty to act in any particular way is, as it seems to me, to expect too much. The Notice of Appeal received by the Employment Tribunal was almost bound, so to speak, to be put into a pending basket rather than into an urgent one and, indeed, it might be thought kindly of the Employment Tribunals to have returned at least the covering letter (and presumably with the Notice of Appeal with it if it had been accompanied with it in the first place) at all to the Royal College of Nursing, which the Employment Tribunals were under no obligation whatsoever to do.
21. The argument of Ms Findlay also asserts that the Notice of Appeal was correctly addressed. There is no evidence that that was the case, using the word "evidence" strictly to mean some affidavit or sworn statement. In fact there is no evidence properly-so-called at all, nor is there anything even informally to come from someone who actually prepared the envelope in question or saw the envelope in question. The Notice of Appeal itself bears no address. It is headed "IN THE EMPLOYMENT APPEAL TRIBUNAL" but bears, as one would expect, no address. It bears no stamp as received by anyone, although the fax header shows, as I have mentioned, that it was received at the EAT at 17:46 on 23 February or at any rate that it was sent from Exeter at that time. A covering letter (or what purports to be a covering letter) of 4 February is correctly addressed to the EAT but what is truly material is the address indicated on the envelope in which the Notice of Appeal was put, with or without that covering letter, as to which there is, strictly speaking, as I mentioned, no evidence at all but only an assertion that a "window" type of envelope would have been used. But it almost beggars belief that had the "window" shown the EAT's London address, the envelope would have ended up in, of all places, the Employment Tribunals in Birmingham. The Employment Tribunals' letter returning a document to the Royal College of Nursing does not say "We return the Notice of Appeal and your letter of 4 February 2000" but only refers to the letter of 4 February 2000 as being returned. The likelihood is, I suppose, that the envelope was not addressed correctly to the EAT in London and it is even possible, although less likely, that the Notice of Appeal was accidentally omitted altogether from the envelope which contained the covering letter of 4 February 2000.
22. Ms Findlay says in her letter to the EAT of 13 March 2000 that the Notice of Appeal had been returned to her but that is not to say that it had been returned to her from the Employment Tribunals in Bristol or in Birmingham and, as to a window envelope having been used, the position is merely that the folds in the papers are said to be consistent with a window envelope being used, as is the normal (but therefore not the exclusive) practice in the Royal College of Nursing Office.
23. It is difficult to see how one could safely recognise a sufficient reason as here being shown to justify an extension without creating a position in which it could be said to suffice to have sent a Notice of Appeal by mistake to an Employment Tribunal or, perhaps, to any other wrong addressee within the 42 days, at all events when it could also be said that the incorrect recipient could have been expected to recognise that he was just that and could also have been expected promptly to inform the Appellant in question of his mistake. In my view, although I recognise that it is an unfortunate chronology that I have had to set out, no exceptional case has here been made out. The requirements of Abdelghafar are not satisfied. The strict view not disapproved is the appropriate response and therefore, in all the circumstances, the appeal must be dismissed. Whether Mrs Thomas has any remedy against her representatives is not a matter I need consider.