United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	MR KEITH BRYANT (of Counsel) Instructed by: Messrs Hammond Suddard Solicitors 2 Park Lane Leeds LS3 IES


 


MR JUSTICE LINDSAY (PRESIDENT)

1. In this matter, Mr K W Simmons appeals against the Registrar's refusal to extend time for his Notice of Appeal, which was presented a remarkable 539 days late, in proceedings in which he had been the Applicant below and in which the Respondent had been the Post Office.
2. This morning (and it is now five to one, the case having been listed for ten-thirty) no one appears on behalf of the Appellant, Mr Simmons. Mr Bryant appears for The Post Office. Mr Bryant's instructing solicitors had understood that Mr Simmons was not intending to appear today and a similar message has been received by the staff at the EAT. It is not that Mr Simmons is sick or delayed, or had intended to appear but for some reason cannot, but that he is intending, or had intended, or continues to intend, not to appear, and accordingly I have not needed to call on Mr Bryant for The Post Office.
3. On 22 January 1996, Mrs Simmons, the Appellant's wife, went for an interview as to a Sub-Post Office Postmistress job with The Post Office; she did not get the job and there was some ill feeling on the Simmons side as to how that matter had been conducted. In the decision which is under appeal it was said as follows:

"Subsequently, the applicant and his wife discovered that Mr Scott had obtained the job and both the applicant and his wife felt that Mr Scott was an unsuitable person and not as well qualified as Mrs Simmons. They were upset by the decision that was made in January 1996 and they have pursued the matter relentlessly ever since. It seems to us that the Applicant became obsessed by the matter; he involved MPs and ombudsmen, and he began making allegations against the two people who had interviewed his wife: Mr McElhone and Mr Drinkwater. He sent some anonymous letters to the Respondent, and made allegations against Mr McElhone and Mr Drinkwater which were of a very serious nature."

4. On 14 January Mr Simmons had an interview himself at the Post Office and he felt as if he was treated in a discriminatory manner, and he felt that that treatment was related to the fact the he had had previous dealings and complaints by way of his wife's treatment to which I have just referred, because the treatment of his wife had led to proceedings. That simmering discontent of his in January 1998 about how he was treated led to him presenting an IT1 for victimisation under the Sex Discrimination Act on 11 March 1998. On 25 March 1998 the Post Office responded to his IT1 and denied victimisation.
5. On 7 and 8 September 1998 there was a hearing at the Employment Tribunal at Sheffield under the chairmanship of Mr O T B David. Those proceedings were numbered 2800529/98. On 6 October the decision was sent to the parties and it was a unanimous decision and the case was dismissed. After referring to the passage I have just quoted as to the earlier upset with Mrs Simmons, the Tribunal went on to say:

"6 As a result of all this, by early December 1997 Mr McElhone had had enough. He had been harassed by the applicant over a long period. He had been subjected to a very long interview when allegations against him were investigated. He could see no end to this persecution. He made very strong complaints, not only to his line managers, but also to his trade union. The respondents felt that by taking photographs in a security area the applicant was in breach of duty and they thought that a criminal offence might have been committed.

7 On 14 January the applicant was interviewed again by Mr Poole."

6. In paragraph 8, the Tribunal said this:

"8 That is the story as far as the applicant is concerned, but his wife was still very concerned about the fact that she had not got the post office job in January 1996. In consequence Mrs Simmons launched an Industrial Tribunal case which went to the Tribunal on 23 December 1997. It was not received by the Tribunal until 29 December and of course on that day, in accordance with Tribunal practice, a copy of the application was sent to the respondents. It follows that in early January 1998 the respondents must have been aware that there was a complaint by Mrs Simmons. Subsequently, that complaint was heard by the Tribunal and it was dismissed, because it did not show a cause of action within the Tribunal's jurisdiction."

7. A little later in paragraph 11 they say:

"11 We have come to the unanimous conclusion that the applicant has not shown that the meeting on 14 January had anything whatever to do with his wife's application. We have seen nothing to suggest that Mr Poole knew that there was a Tribunal application pending at the time he conducted the interview and we have seen convincing evidence which shows that the reason for the interview was the correspondence which took place in December as a result of Mr McElhone's complaint. We find that that was the reason that the applicant was interviewed."

And finally they say:

"It seems to us that the applicant has not shown that he was discriminated against within the meaning of section 4 of the Sex Discrimination Act in the way that he suggests."

8. That was sent to the parties, as I mentioned, on 6 October 1998. On 19 October Mr Simmons asked for a review. On 2 November a review was declined, with reasons. On 21 November 1998 the 42 day period from 6 October 1998, the 42 day period in which a Notice of Appeal might ordinarily be lodged, expired.
9. A good deal later, on 8 July 1999, in other proceedings, numbered 2802417/1998, there was a hearing before the Employment Tribunal under Mr R Lloyd Williams, in other proceedings with Mr Simmons and the Post Office. The decision in that case was as follows:

"The unanimous decision of the Tribunal is that this case is adjourned and re-heard afresh by a differently constituted Tribunal for the reasons given below."

And in paragraph 1 it says this:

"1 The Tribunal convened today to hear this application which was scheduled to last two days. The respondent closed its case just prior to the luncheon adjournment today, the first day. This afternoon the applicant began to give his evidence during the course of which he alluded to certain matters which, according to Mr Groom, the respondent's counsel, put him in a professional difficulty and compromised his ability to continue acting for the respondent in a proper manner. Mr Groom had appeared for the respondent in earlier proceedings brought by Mr Simmons under the Sex Discrimination Act. It was as a result of a result of matters raised in those earlier proceedings, which as it turns out form part of the applicant's case against the respondent, that Mr Groom felt he could no longer continue to act in the present case."

Mr Groom had appeared for the Post Office in the proceedings that led to the decision sent to the parties on 6 October 1998.

10. The Tribunal, under Mr R Lloyd Williams in July 1999,continued in their paragraph 2:

"2 The matter was discussed briefly but it remained clear that Mr Groom felt himself to be still in difficulty and with that being the case and in the light of the fact that the respondent wished to instruct a new representative, the Tribunal after hearing from both sides and after explaining the matter to the applicant, felt it right to adjourn. We fully appreciate that this is a disappointment to all concerned, not least the applicant who, understandably, has felt himself to be under some strain. He has for a lengthy period since his dismissal been involved in the proceedings and was evidently anxious to have the case disposed of as quickly as possible."

11. On 4 May 2000 Mr Simmons asked the Employment Appeal Tribunal to extend time for his Notice of Appeal which had not, at the time, been received. He said:

"I wish to formally request extended time for appeal against decision of 7^th 8^th September 1998 Sheffield IT 2800529/98 Simmons v Post Office SD victimisation heard by chairman Mr O T B David.

The reasons are that has become apparent that the legal representative Mr Ian Groome has deliberately and wilfully perverted the course of justice in his removal of two evidential documents from IT bundles and submission of a procedurally impossible blank form.

The depths of Mr Groom's involvement has only become apparent since a subsequent tribunal in July of 99 on related issues involving the same parties in which Groome collapsed the case due to his professional embarrassment."

And a little later, still in this written application that was made on 4 May 2000:

"The nuts and bolt of the allegation are that Foley (respondent counsel instructing) disclosed documents in the anticipation that the un-represented applicant would produce them as was indeed the case. Groome (respondent counsel presenting) then proceeded covertly within IT to remove 2 of the documents from the bundles. The union room was used as the means of disclosure/discovery though the union claim no knowledge of two faxes, (both produced by the applicant as respondent disclosures) one of which was purportedly undisclosed and in the sole possession of respondent Alan Hoole whilst the other was successfully challenged as a forgery by Groome who successfully argued authenticity of a blank form."

It is submitted that the lateness with which applicant has submitted this appeal is nonetheless with all due diligence given the timing of events, the intransigence of chairman Mr David and EAT who have declined to disclose chairmans notes, the applicants state of health and the implementing of other procedures which seem appropriate to one not legally trained."

12. On 15 May the Notice of Appeal was received, as I mentioned, 539 days late. On 22 June the Post Office's solicitors indicated that they would oppose the extension that was being sought, and on 30 June the Registrar made her Order that included the following:

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

IT IS CONSIDERED that 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 which plainly states…"

and then there is a citation from them

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

13. On 31 June Mr Simmons indicated his wish to appeal against the Registrar's Order. He says:

"The appeal is derived from events in subsequent tribunal of July 99 and could not therefore (as would be obvious to your average 5 year old) suffice the time limits.

In the afore mentioned IT of July 99 it was discovered that the barrister representing on Sept 7^th and 8^th had deliberately perverted the course of justice by means of document tampering and submission of a fabricated document (a criminal act)."

On 12 July Mr Simmons said:

"The applicant who has no legal qualifications or access to advice could not pursue the submitted appeal referred to due to finance and health implications. In any event it was not known at the time that the actions of the barristers involved were illegal."

A little later:

"The applicant is aware of 42 day time limits and having no access to legal advice could not reasonably be expected to know that an appeal submitted this late (subsequent to discovery of July 1999,)* could be considered at all."

That was addressed not only to the EAT but to the Employment Tribunal. On 15 July the Tribunal Chairman wrote:

"As far as this tribunal is concerned, your case has been adjudicated and the matter is concluded. Neither the tribunal staff, nor a chairman can enter into further correspondence about the case"

On 14 November 2000, Mr Simmons indicated that there was conclusive evidence, in his view, of conspiracy, and on 23 November he added a further note to a not dissimilar effect.

14. That is the chronology of the matter. I do not doubt that if a prospective appellant discovers afresh some fact which suggests that there was indeed a forged document, or a corrupt or improper dealing with relevant documents, in earlier proceedings, and that that fresh fact came and could only be reasonably expected to have come to his knowledge after the time for appealing had expired, then that could very well furnish an exceptional reason for the extension of time in which to appeal. But, even in such a case, the applicant seeking extension of time would be expected to make a very clear case: that the new evidence would have been likely to have been credible, and that it would be likely to have had a significant effect on the result in the case which was sought to be appealed against; and he would also need to show that the appellant moved with all reasonable speed once the new material had come to notice.
15. But when one looks at the facts of the case in Mr Simmons's application, although the papers show that complaint has been to the Bar Council and to the Ombudsman or Ombudsmen, there is nothing further in the papers before me beyond mere accusation against Mr Groom. The Employment Tribunal in July 1999 did not criticise him in any way, and certainly did not use language suggestive of a position in which he had tampered with evidence, or was held to have done so, or admitted doing so. His withdrawing from the case in July 1999 was entirely consistent with there being nothing more than there being accusation by Mr Simmons as to his conduct in September 1998.
16. I cannot, on the material that I have had produced to me, conclude that there was any misconduct in relation to the hearing of September 1998. It is not altogether clear, in Mr Simmons's absence today, exactly what point he was seeking to make, in any event. But doing the best I can, he seems to be wishing to counter Mr Poole's knowledge, or lack of it, in relation to Mrs Simmons's earlier complaint.
17. The Tribunal held that the Post Office itself had known of Mrs Simmons's complaint. I have already read out the passage that indicates that, as follows:

"It follows that early in January 1998 the Respondents must have been aware that there was a complaint by Mrs Simmons"

A little later, again in a passage I have already cited, they said that Mr Poole did not know, and, of course, it is entirely possible for the Post Office to know of a fact of which Mr Poole, as an individual, would not have known. They said:

"We have seen nothing to suggest that Mr Poole knew that there was a Tribunal application pending at the time he conducted the interview."

And they refer to convincing evidence and so on.

18. There is no hint that one can discern in the Tribunal's decision which is sought to be appealed against that the view of the Tribunal that Mr Poole did not know of Mrs Simmons's earlier application was in any way dependent upon the presence or absence of some piece of paper, such as an IT1 form. The conclusion was that the Post Office knew, but that he did not; that seems to have been arrived at on evidence that satisfied the Tribunal. I have no reason to think that the Tribunal would have determined otherwise had whatever further paper Mr Simmons is concerned about been available to the Tribunal. But even, supposing, against that, that there had been some misconduct with the papers back in 1998, Mr Simmons still then has to explain the delay from July 1999 to 15 May 2000, when the Notice of Appeal was received. And, moreover, one has to remember that the legislature has set 42 days as the appropriate time for the lodging of a Notice of Appeal.
19. There is no explanation whatsoever, that satisfies me, as to that delay - from July 1999, the date of the second of the proceedings in the Employment Tribunal to which I have referred, and the lodging of the Notice of Appeal. Mr Simmons may well have suffered from a depressive illness in 1998 and 1999, and indeed may still do so, but he has shown himself well able, at repeated intervals over the chronology, to address great tracts of writing to his complaints against the Post Office and I have no reason to suppose that he would not have been able to compose a Notice of Appeal. His Notice of Appeal has all the appearance of having been drafted by him, and, given that he could draft in May 2000, I have no explanation as to why he could not have drafted one earlier.
20. I have to bear in mind the Abdelghafar case which the Learned Registrar referred to, and the later case in the Court of Appeal Aziz -v- Bethnal Green. Had there been proof of material misconduct at the hearing in July 1998, I would have been very ready to listen to an explanation of that, and no doubt, had the appropriate case been made out, I would have been willing to extend time on the basis that Mr Simmons could not have been expected quickly to recognise that a Notice of Appeal could be lodged, if one had good reason, even after the 42 days had expired. It could have been said, I think, on his behalf, that his past dealings would have led him to think that once the 42 days had expired, then no appeal could possibly be lodged, that the expiry, in other words, was a totally insuperable obstacle - that might have been a case that could have been raised. But here there is no evidence of there being some abuse or misbehaviour in 1998; it is merely Mr Simmons's assertion and, given that the complaints are as serious as they are, one cannot be expected to take them to exist simply by reason of their being asserted. One would have needed proof, and there is no evidence at all. Moreover, as I have mentioned, there is no acceptable reason given, possibly no reason at all given, for delay after July 1999 until May of this year.
21. All in all, no grounds for granting Mr Simmons the exceptional and indulgent course of an extension of time for his Notice of Appeal are made, and I have to bear in mind the immense delay in this case, given that the Notice of Appeal was presented 539 days late. I do not say that such a late delay is never overcomable, but it certainly is not overcome in the case on the evidence before me and accordingly I do not extend time and dismiss the appeal.
22. Given that serious allegations were made, and not substantiated in any way, I think it is appropriate that there should be an Order for costs. Rather than embarking on taxation, which is itself quite an expensive process, and knowing nothing of Mr Simmons's means, I am a little concerned about awarding taxed costs without some fullish indication of what they would come to, but I do think that some Order should be made and accordingly I will award the Post Office £300.