United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENTS


 


MR JUSTICE LINDSAY (PRESIDENT)

1. I have before me an adjourned hearing of an appeal by Omega Team Carers Ltd in the matter Mr B Wallace & Others v Omega Team Carers Ltd. Omega appeals against the refusal by the learned Registrar to extend time for its Notice of Appeal, which is some 97 days out of time.
2. The case was listed to come on at 10.30am; it is now 12.01pm and nothing has been heard from Omega to suggest that some person was intending to attend but has been delayed or hindered and no-one appears either for any of the Respondents. We have had a letter from one Respondent indicating that he was sorry that he was not able to attend but that he was, in effect, a one-man business and could not afford to close his shop for the whole of the day. In these circumstances, having heard nothing to suggest that the Appellant was meaning to attend but had unfortunately been hindered in that intention, I go ahead without awaiting further communication.
3. I dealt with this case first on 15 February 2002 and gave a judgment which needs to be read as a prologue to today's judgment. It has, since that first hearing, transpired that Omega, although having ceased to trade, does indicate that it wished to pursue its appeal. Secondly, it has since 15 February transpired that the Employment Tribunal had destroyed all the papers that it had.
4. In that latter circumstance a full evaluation of the whole course of the case is and will remain impossible. Accordingly, I must focus, first of all, on the sending out of the Employment Tribunal's judgment on 25 October 2000. That set the 42 days running. I must look at the lapse of time until the Notice of Appeal was sent to the Employment Tribunal on 13 March 2001. I must look for explanation of that great lapse of time, 97 days beyond the permitted 42.
5. The only explanation offered in the papers is that the company, Omega, directed a purported appeal to the Employment Tribunal rather than to the Employment Appeal Tribunal and that the Employment Tribunal failed to indicate to that company that the company was in error in doing so in time early enough for a still timely Notice of Appeal to be lodged to the Employment Appeal Tribunal.
6. I can describe as a first period of delay that between the sending out of the Employment Tribunal judgment and the company learning that it should have addressed any appeal to the EAT and not to the ET; that is the first period of delay. But even after that there was a delay. The company learned from the Employment Tribunal that appeal should be directed to the Employment Appeal Tribunal round about 19 January 2001 but did not send the Notice of Appeal to the Employment Appeal Tribunal until 13 March 2001 and that one can call the second period of delay.
7. As to, in particular, period one of delay, Duke v Prospect Training Services [1988] ICR 521 and Martin v British Railways Board [1989] ICR 24, make it quite plain that, so far as jurisdiction is concerned, the Employment Tribunal is uninterested in and takes no part in appeals to the Employment Appeal Tribunal and that, on the other side, the Employment Appeal Tribunal is unconcerned about documents sent as if by way of appeal, to bodies other than itself. One does not satisfactorily excuse delay in applying to the correct body by asserting that one had previously applied to the wrong one. Period one then is left without any adequate excuse; period two is completely unexplained.
8. So, although I would have wished to have looked at a bigger picture, and to have been able to have sight of the whole of the Employment Tribunal's papers, they, as I mentioned, are not available. I simply must look at the issues that arise and are focused upon in the well known Abdulghafar case and in the later case in the Court of Appeal of Aziz v Bethnal Green. I must look to see whether there is any explanation which adequately explains and excuses the delay and whether that evidence is such as to enable one to grant the exceptional relief of an extension of time.
9. Here I see no adequate explanation that excuses delay and I must therefore dismiss the appeal.