United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P O'BRIEN (of Counsel)
For the Respondent	MR S JONES (of Counsel) BG Transco Legal Department 100 Thames Valley Park Drive Reading Berkshire RG6 1PT


 


JUDGE CLARK

1. The proposed Appellant, Mrs Parker, was 74 years of age. She was employed by the Respondent until her compulsory retirement on grounds of age on 1 June 1986. At that time the Respondent has a policy of retiring women at age 60 and men at 65.
2. She presented a complaint of unlawful sex discrimination to an Employment Tribunal on 15 July 1996. By a decision dated 25 November 1999 an Employment Tribunal sitting at Birmingham dismissed her complaint on the grounds that it was time barred and it would not be just and equitable to extend time. Hers was one of 32 similar complaints, all of which were dismissed by the Employment Tribunal. The Employment Tribunal decision with extended reasons ran to 88 pages.
3. During the Employment Tribunal proceedings the proposed Appellant had been represented by the Solihull Citizen's Advice Bureau. Upon receipt of the Employment Tribunal decision her representative, Mr Mortis, promptly wrote to her on 26 November 1999, informing her that he would be seeking an opinion from counsel, Ms George, who had represented the Appellant below. His own, non-legal feeling, was that an appeal was not worth it.
4. Ms George gave an unfavourable opinion as to the prospects of success on appeal. That opinion was relayed by Mr Mortis by a letter to the Appellant dated 16 December 1999. I am told, and I accept, that that letter was delayed in the post. It did not arrive until 10 January 2000. No appeal was lodged within time; that is, by 5 January 2000.
5. The Appellant spent Christmas away from her home in Solihull. She was in Cornwall. During that period she suffered a chest infection.
6. Two of her fellow Applicants below were represented by Mr O'Brien. He took a more optimistic view of the prospects of success on appeal. The Citizen's Advice Bureau mentioned that fact in their letter of 16 December which failed to arrive until too late. Mr O'Brien wrote to the Appellant on 23 December; that letter was also delayed in the post.
7. Following her return to Solihull shortly before the 10 January the Appellant remained unwell, as is evidenced by the letter for her General Practitioner, Dr Wilkinson dated 13 January 2000.
8. On 10 January she received both Mr Mortis' letter of 16 December and Mr O'Brien's letter of 23 December. She opened them the following day and promptly contacted Mr O'Brien, asking him to enter an appeal on her behalf. He did so the following day, at the same time seeking an extension of time.
9. That application was opposed by the Respondent and on 22 February 2000 the Registrar refused to extend time on the ground that no exceptional circumstances for doing so had been shown. Against that order this appeal is brought.
10. There has been a further development. On 10 May 2000 a division of the Employment Appeal Tribunal presided over by Nelson J considered appeals by 17 of the original Applicants in cases numbered EAT/125/ and 126/00. The appeals were permitted to proceed to a full hearing on certain grounds identified in the judgment given on that day.
11. An extension of time for appealing will only be granted in exceptional circumstances. The Appellant must show a full, honest and acceptable explanation for the delay in appealing, here a delay of some 7 days.
12. In opposition to the appeal Mr Jones has taken a number of fair points. He submits that the Citizen's Advice Bureau is not entirely without fault in failing to ensure that the Appellant was aware of the contents of their letter of 16 December before the time for appealing expired. Equally he submits that the Appellant, despite her age and infirmity, is not without fault in going away for the Christmas holiday to Cornwall without making contact arrangements with her Citizen's Advice Bureau representative or making any other arrangements for mail to be forwarded to her before the date for appealing expired. Further he reminds me of the observation made by Mummery J in United Arab Emirates –v- Abdelghagar (1995) ICR 65 at 72a dealing with the possibility of misdirection of mail and he has reminded me of the Employment Appeal Tribunal decisions on Originating Applications lost in the post with the result that the time for lodging such applications had expired.
13. I take all these matters into account in considering how I should exercise my discretion in this case. I find that this is one of those rare and exceptional cases in which an extension of time ought to be granted. In reaching that conclusion I have taken into account the following factors which it seems to me favour the exercise of discretion on the side of the Appellant

(1) I accept that the delay in lodging a Notice of Appeal was caused by a combination of postal delay and illness on the part of the Applicant. A combination of events which I find wholly exceptional in its misfortune.

(2) There was a change over between representatives through no fault of either of those representatives or of the Appellant.

(3) The Appellant is a lady in her late years who was described by the Employment Tribunal as somewhat confused when giving her evidence, and therefore not best able to deal with the unfortunate combination of events which befell her in this case.

(4) Although the question of prejudice to the Respondent has said to be a factor of little or no significance by Mummery J in Abdelghafar, I take into account that these Respondents already face a full appeal hearing in 17 related cases. They are not going to be put to any significant additional expense or inconvenience by defending Mrs Parker's appeal.

14. In these circumstances I shall allow this appeal and direct that this case be joined with the case of Mrs Simms and Others (EAT/126/00) and be permitted to proceed to a full hearing without the need for an ex parte preliminary hearing on the identical grounds identified by Nelson J in his judgment delivered in the Simms case on 10 May 2000.