United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	ANDREW BLAKE (of Counsel)


 


MR JUSTICE LINDSAY (PRESIDENT)

1. I have before me the appeal of Mr Keith Gregory in the matter Gregory -v- Scapa Filtration Ltd. Mr Gregory appeals against the Registrar's Decision not to extend time for the reception of a late Notice of Appeal. This morning no one appears here for Mr Gregory, as I shall later explain, but Mr Blake appears for Scapa Filtration Ltd.
2. The history of the matter is this: on 26 August 1998, Mr Gregory presented an IT1 for breach of contract and, as he put it, as to his not being given requested information. In that IT1 no one was identified as being his representative.
3. On 16 September 1998, Scapa put in an IT3 and the story that it set out was that Mr Gregory had been dismissed for incapacity and inability to work; that the company had a permanent health insurance policy; that Mr Gregory had claimed on it; that the insurance company had at first refused the claim and that Mr Gregory then went to the Insurance Ombudsman. The Respondent Company said that they then gave the Ombudsman such information as he requested and they said that the outcome was that the Ombudsman had managed to procure an offer from the insurance company to Mr Gregory. Mr Gregory accepted it and was paid accordingly in full and final settlement. His employment, said the company, finally ended on 25 May 1998 and they said there was no relevant breach of contract by the company; so it asserted in its IT3.
4. There was then a very long gap which we do not need, for immediate purposes, to go into. On 4 October 2000, the solicitors Irwin Mitchell wrote to the Employment Tribunal to indicate that they were then instructed to act for Mr Gregory and asked for the Employment Tribunal records to be amended accordingly. On 11 June 2001 there was a hearing of the Originating Application at the Employment Tribunal at Shrewsbury. Mr Gregory was represented by Counsel.
5. On 17 July 2001 the Decision was sent to the parties; it was unanimous. It was the Decision of the Tribunal under the chairmanship of Mr D P Thompson and it was that the application was dismissed. On the sending out of that Decision on 17 July time started running for the lodging of a Notice of Appeal. On 1 August, Mr Gregory put in a request to the Employment Tribunal for a review of that Decision; he put in a long letter. It did not say in terms that Irwin Mitchell no longer acted for him, nor could that be necessarily implied in the letter.
6. On 22 August the Employment Tribunal refused that review. On 28 August 2001 the forty two days period limited for the lodging of a timely Notice of Appeal, time having started running on 17 July, expired. On 5 September Irwin Mitchell wrote to the Employment Tribunal indicating that they were to come off the record for Mr Gregory and that was the date on which the Employment Tribunal actually received the Irwin Mitchell letter to that effect.
7. On 28 September, by a letter of that date, Mr Gregory indicated that the Employment Tribunal had, in his view, mistakenly sent the Decision to his erstwhile solicitors and claimed that he had been waiting for a formal copy so that he could then appeal. It also indicated that he had been awaiting answers to his review, although he described that application for a review application as if it had been an appeal to the Shrewsbury Tribunal. Of course, there is no such thing. The matter came, as these matters do, to the Registrar; it came before her on 21 November 2001, and the Registrar refused an extension of time.
8. The last of the matters I need to mention as a matter of history is that on 28 April of this year Mr Gregory indicated that he was, on medical grounds, unfit to travel to London today but he invited the Tribunal to proceed on the papers that he had lodged, which include a Skeleton Argument. He also sent a doctor's certificate as to hypertension and diabetes, leading to unfitness to attend today
9. Well, that is the background. As far as the Employment Tribunal is concerned, Mr Gregory was represented by solicitors down to 5 September 2001. It was quite correct on the Tribunal's part to send the Extended Reasons to Messrs Irwin Mitchell. I, of course, do not know when and in what terms Irwin Mitchell advised Mr Gregory as to the Extended Reasons nor as to any ability as to appeal against the conclusion, nor as to the manner in which, and a date by which any ability to appeal against the conclusion was to be presented.
10. But equally, I have nothing before me to indicate that Irwin Mitchell gave wrong or incomplete advice. I have no reason, therefore, to regard the forty two days, namely the appropriate time for appeal, running from 17 July, as not having been brought to Mr Gregory's notice in sufficient time for a timely Notice of Appeal to have been lodged. The only reason given for delay is the mistaken view that a request for a review by the Employment Tribunal provided a good reason to postpone an appeal to the Employment Appeal Tribunal. That, though, is not a good explanation or excuse. Moreover, the merits of the underlying appeal play little part unless, very obviously, the appeal is likely to succeed or equally obviously, is likely to fail.
11. Mr Gregory's chief complaint is as to lies having been told at the Tribunal below, he says, by a Mr Heath of the Respondent Company. But credibility is essentially a matter for the Tribunal below; one thus cannot regard the Notice of Appeal as one plainly likely to succeed; it does not, in other words, help him to refer to the alleged merits of the underlying appeal. Mr Blake rightly asks me to have in mind the guidance given in the Abdelghafar case and also as the Court of Appeal has indicated in Aziz -v- Bethnal Green. In that latter case it was argued in the Court of Appeal that the Employment Appeal Tribunal was, so to speak, harder on appellants than was the Court of Appeal with late applications to the Court of Appeal, but the Court of Appeal in Aziz indicated that the relatively strict line taken by the Employment Appeal Tribunal was, in all the circumstances, not inappropriate.
12. Bearing in mind the guidance given by those two cases, I cannot here see that there is any acceptable excuse for the delay. Certainly there is nothing that justifies what is described as the exceptional relief of an extension beyond the relatively generous forty two days afforded by the Rules. In all the circumstances I must therefore dismiss the appeal.