United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR F EDWARD JNR Barrister (non practising) Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX
For the Respondents	MR S LAKHA (of Counsel) Instructed By: Miss G Walsh Solicitor London Borough of Lambeth Lambeth Town Hall Brixton Hill London SW2 1RW


 


JUDGE COLLINS:

1. This is a directions hearing ordered at my direction, in an unusual case with a regrettable history. By reasons contained in reserved extended reasons which were promulgated on 28 September 1998 an employment tribunal sitting at London (South), rejected all but one of the appellant's claims that he had been subjected to racial discrimination. These claims were consolidated claims which had been begun between June 1990 and August 1991. In relation to the only minor matter in which they adjudicated in the appellant's favour, they reviewed their decision, consequent on a request made by the respondents. In extended reasons promulgated on 2 March 1999 they reversed their decision and ordered the appellant to pay costs on Scale 2 on an indemnity basis.
2. So the present situation is that all of the appellant's complaints stand dismissed and it ought to be recorded that the tribunal, after a 12-day hearing with nearly 2,000 pages of documents, ended up by expressing views as unfavourable of the appellant as any that I have read. They found he had fabricated his work experience. They found that he made a fraudulent job application. They found that he fabricated his qualifications. They found that he had falsified overtime sheets and in their decision after the review hearing they said that the appellant was a shameless user of the race card and was a devious and dishonest perjurer. So it is in that context that the subsequent procedural complications have to be looked at.
3. The time limit for appealing to this tribunal from the decision of 28 September 1998, expired on 9 November. On that date the appellant faxed a letter to this tribunal saying that the original hearing was subject to review and asking whether he should get his appeal in on 9 November or wait. He was not very satisfied with the answer he got, so that later on in the same day he faxed a 9-page document to this tribunal which is headed "Notice of Appeal from the Industrial Tribunal (London South)" (interim submission) and contains detailed criticisms of the tribunal's decision.
4. On 13 November an officer of the tribunal wrote back telling the appellant that the Notice of Appeal did not comply with the rules of this tribunal because it did not attach a copy of the order of the tribunal and the extended reasons, and said that the appeal could not be considered to be properly instituted and he returned it. The letter concludes in this way:

i. "May I respectfully suggest that you wait until the employment tribunal has made its decision in relation to the review application before entering a Notice of Appeal."

5. Now first of all, although I have not heard full argument on the point, it seems to me very doubtful as to whether it was the proper province of a member of staff to reject a Notice of Appeal for the grounds which are given, although it is quite correct that Rule 3 of the Employment Appeal Tribunal Rules 1993 are mandatory in form, saying that every appeal shall be instituted by serving the documents referred to in the letter of 13 November. However, Rule 39 makes it clear that failure to comply with any requirements of the Rules shall not invalidate any proceedings unless the Appeal Tribunal otherwise directs.
6. It seems to me (although, as I say, I have not heard full argument on the point) the proper course might well have been to accept the Notice of Appeal and then refer the matter to the Registrar in her judicial capacity or to a Judge for a decision as to whether the appeal should be struck out, or whether an order should be made giving the appellant an extension of time to serve the extra documents. So that it must be considered doubtful as to whether the procedure adopted by this Tribunal is correct. Secondly, it was quite clearly incorrect for the appellant to have been advised to wait until the decision in relation to the review. First, according to my understanding, an application for a review does not stop time running and second, the only review which actually took place was in relation to that part of the appellant's claims which was decided in his favour; none of the rest was ever reviewed. So something clearly went wrong in the office here which was disadvantageous to the appellant.
7. The appellant eventually lodged a Notice of Appeal on 4 April 1999, which was the last possible day for appealing from the decision of the review which actually took place and although I have not embarked on a detailed comparison between the two documents, in substance the appeals, I think, are the same. They are mainly directed towards questions of fact. They are allegations of bias, prejudice and unfair conduct by the tribunal, causing them to make false decisions of fact against the appellant.
8. The facts as I have recounted them only became apparent yesterday when I received the skeleton argument of Mr Edward junior, on behalf of the appellant; until then I was unaware of what had transpired on 9 November. I was unaware that the appellant had attempted to lodge a Notice of Appeal and unaware that his Notice of Appeal had been rejected with the covering letter. The position today seems to me to be that however lacking in merit the appellant's claims may be, as to which I express no opinion, he ought not to be shut out from the opportunity of making an appeal because of what (may be to put it neutrally) is administrative confusion.
9. Mr Lakha for the respondents, has put forward powerful arguments as to why, on a proper analysis, even making allowance for administrative confusion, the original appeal should be regarded as not having been entered and the subsequent one should be regarded as out of time. He points out that each of them were lodged on the last possible day. He points out that the appellant is experienced in appealing to this tribunal over many years and was well aware of the time limits and the rules. He points out that the appeal of 4 April 1999 was only just in time in relation to one tiny part of the case; in relation to the rest it was out of time.
10. In my judgment the starting part is what happened on 9 November. The appellant did make an attempt to lodge a Notice of Appeal and the fact that it was not recorded in the books of the tribunal as an appeal is a misfortune. The order that I propose to make is as follows. I shall order the document lodged at this tribunal on 9 November 1998 be treated as a valid Notice of Appeal and, as an alternative, if that decision should be wrong, I am give leave for the appeal of 4 April 1999 to be made out of time. That will have the effect of regularising the position. Notwithstanding the arguments of Mr Lakha, I am fortified in my decision by reason of the fact that the appellant's Notice of Appeal has stood since 4 April 1999, and until the matter was raised on my initiative the respondents did nothing about it, save to record in their plea and directions hearing document a query as to whether the appeal was out of time.
11. I am going to make a direction in accordance with the suggestion of Mr Edward, that he be given an opportunity to amend the two Notices of Appeal by replacing them with one document giving a succinct statement of the points of law relied on I direct that unless by 4.00 pm on Wednesday 19 April the appellant has lodged with the Employment Appeal Tribunal an amended Notice of Appeal (a) in substitution for the documents of 9 November and 4 April, and (b) setting out in a succinct form the matters of law raised in the appeal, the appeal will be struck out.
12. I am going to order this appeal to proceed to a full hearing. I think in the circumstances we allow a day for the case, listing Category C because it is actually quite straightforward, even though the case is weighty. Skeleton arguments 14 days before the hearing.