United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MENZIES (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER BURKE QC:

1. On 8 November 2000 the Employment Tribunal sitting at Stratford, chaired by Mr Duncan, in a decision promulgated with summary reasons, albeit relatively full summary reasons, dismissed Mr Barrett's claim that he had been unfairly dismissed by his employers on the grounds that the originating application had been presented too late, because the effective date of termination of Mr Barrett's employment was at the latest 31 October 1999. The originating application was therefore required by section 111 of the Employment Rights Act 1996 to be presented by 31 January 2000 and it was not, in fact, presented until a substantial time thereafter. The tribunal found as a fact that it had been reasonably practicable for Mr Barrett to bring his claim in time.
2. The tribunal subsequently refused to provide extended reasons for that decision. It did so on the basis that the application for such reasons had not been made within 21 days of the promulgation of the decision as required by the rules. The refusal appears in a letter of 25 October 2001 which responded to a series of letters from Mr Barrett to the tribunal during the course of that month. In the letter the tribunal indicated the Chairman's view that the summary reasons were probably sufficiently detailed for an appeal to be based on them but that that was a matter for the Employment Appeal Tribunal. The letter, of course, assumed that there was an extant and valid appeal to the Employment Appeal Tribunal.
3. After the original decision, Mr Barrett, once he had seen it and read it and after he had recovered from a serious illness which kept him in hospital in the early part of January, believed that he wanted to appeal against that decision or, at least to obtain some hearing which would put right what he believes had gone wrong in the decision which the tribunal had issued against him. There was extensive correspondence with the Employment Tribunal, in particular in a letter which obviously mistakenly was dated 25 October but was sent to the tribunal on 21 November 2000. Mr Barrett asked the Employment Tribunal to refer his case to an alternative tribunal so that he could have a chance to present his case fairly. We are told by Mr Menzies, on his behalf, that he believed that by putting a request to the Employment Tribunal in that way Mr Barrett believed that he was properly presenting an appeal. There was further correspondence before, on 20 December 2000, the Regional Chairman, Mr Lamb, wrote to Mr Barrett saying, among other things, "You have a right of appeal to the Employment Appeal Tribunal in respect of the Tribunal's decision". It is accepted by Mr Barrett that he received that letter some time in January 2001; the precise date may or may not be an issue but, in any event, does not matter for present purposes.
4. As we have already indicated it was not until October 2001 that extended reasons for the original decision were sought and refused. That request of the tribunal appears to have arisen because, by that time, Mr Barrett had appreciated that his appeal should be made to the Employment Appeal Tribunal, which pointed out that he needed extended reasons and thus sent him off, as it were, to the Employment Tribunal to seek those reasons.
5. The first appeal which is before us today at this preliminary hearing is an appeal by Mr Barrett against the refusal by the tribunal to provide extended reasons which were not sought for nearly a year after the decision itself; that refusal we have described above.
6. By a notice of appeal dated 10 October 2002, Mr Barrett appealed to the Employment Appeal Tribunal against the original decision of 8 November 2000. That appeal is admittedly something like just under 300 days out of time. There are also within our bundle (at pages 4, 5 and 6 of that bundle) three further notices of appeal which appear to be notices seeking to appeal against not judicial decisions of the Employment Tribunal but letters from the tribunal to Mr Barrett. We are told that each of those three notices of appeal has now been withdrawn and is no longer extant; and we are proceeding on that basis. Plainly there never was anything in those notices of appeal, because they were not appeals against any decision which could be the subject of an appeal. If they were still extant we would have struck them out; but on the basis that they are not we will not do so. We say that because it is important that the present situation is tidied up and that there are no loose ends left after this hearing.
7. Mr Menzies, who has appeared for Mr Barrett under the ELAAS Scheme, was aware, once he had read the papers in this case, that the appeal against the decision of the original substantive decision of the tribunal was to be heard today by way of a preliminary hearing but thought that the only issue was whether or not this appeal tribunal would proceed on the basis of the summary reasons without the extended reasons.
8. However, we have pointed out to him that if the substantive appeal, as it was, was out of time, and if no extension of time were granted, although an extension of time was sought by Mr Barrett, there would be no point in considering whether or not the appeal could proceed on summary reasons because the appeal would never get off the ground, it having been presented too late. Mr Menzies has helpfully agreed with that analysis and has therefore made concise and extremely helpful submissions to us as to why an extension of time for the substantive appeal should be granted. He also agrees, pragmatically and helpfully, that if we were to extend time and if we agreed that the appeal should proceed on summary reasons (as if time were extended we would be minded to do) there would be no purpose in our considering the appeal against the refusal to grant extended reasons. But if we were not to extend time the substantive appeal could never get underway in a substantive form; and, therefore, for that reason too there would be no point in our considering the appeal against the refusal to grant extended reasons. Thus, that appeal can be dismissed whichever way we deal with the substantive appeal and we therefore dismiss it. We have to say that it does not appear to us that it had any real merits in any event; but it is not necessary to say any more about it.
9. We therefore turn to what is the live issue, namely whether an extension of time in relation to the notice of appeal against the substantive hearing should be granted against the background that the notice of appeal was presented, as we have already said, something like 300 days too late.
10. Mr Barrett says that he either never received or at least had mislaid and never read the usual document which accompanies a decision of the Employment Tribunal, which tells the parties where they should and how they can appeal against such a decision if they wish to. Hypothetically, we will assume that what Mr Barrett tells us about that is correct. It is clear that, immediately following the decision, Mr Barrett took steps to seek some form of a re-hearing in the correspondence with the tribunal, to which we have referred; and then in January he was ill. Thereafter, says Mr Menzies, and indeed, Mr Barrett has set it out in various documents which we have seen and, in particular, in a very substantial written submission on the issue of extension of time, dated 17 January 2002, which we have read with care, Mr Barrett went abroad. He went to Tenerife for several months. He frankly says that he did not take his papers with him. Some time after coming back, although it has to be said, not immediately after coming back, he discovered, so we are told, that there was an internet site for this appeal tribunal; thus for the first time he realised, it is said, that there was this tribunal and that this tribunal was or could be the proper destination of his appeal and so he lodged his notice of appeal on 10 October.
11. It is an established principle that the Employment Appeal Tribunal takes a strict view of the time requirements for the lodging of an appeal against a decision of the Employment Tribunal. Three key questions arise in each case where an extension of time is sought. Firstly, what is the extent of the default? Secondly, does the explanation provide a good excuse for the default? - is there a full, honest and acceptable explanation. And thirdly, are there circumstances which justify the appeal tribunal in taking the exceptional step of extending time as sought?
12. The default here was very substantial. While it is said that it was not until October of last year that Mr Barrett appreciated that he should make an appeal to this appeal tribunal, the account which we have been given entirely omits to deal with the letter from the Regional Chairman to Mr Barrett of 20 December 2000 to which we have already referred. That letter, in explicit and plain terms, tells Mr Barrett where his appeal should go, namely to the Employment Appeal Tribunal. It is not difficult to find the Employment Appeal Tribunal; it is not difficult to find advice which will tell one how to get to the Employment Appeal Tribunal.
13. The explanation put forward to us would probably be inadequate, even if this letter had not been sent; but in the light of the sending of that letter and the admitted receipt of that letter, the terms of which are perfectly clear, the explanation which is put forward before us does not even begin to be an adequate or acceptable explanation of the delay, even if there had not been the further delay between January and October, which is not adequately explained by the fact that Mr Barrett, whatever his health reasons and his need to get away, was out of the country for several months without his papers at a time when he wanted to pursue an appeal.
14. We have some sympathy for Mr Barrett who obviously, as the papers reveal, has been in recent years through an extremely hard time; and it is unfortunate that his desire to appeal should be frustrated by time problems. But we simply do not see that there is even an arguable case, let alone a persuasive case, for us to extend time where the default is as long as it is and where the explanation is as unsatisfactory as it is in this case. There are no special circumstances in our judgment which would warrant an extension of time in this case; and an extension of time is not granted. For those reasons the appeal against the substantive decision of the tribunal of 8 November 2000 is dismissed.
15. Thus, all of the various notices of appeal which appear in our bundle are finally dismissed.