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 Respondent


 


HIS HONOUR JUDGE PETER CLARK

1. By an Originating Application presented to the Watford Employment Tribunal on 8 July 2002 the Applicant, Ms Ajagunna, brought a complaint of constructive unfair dismissal against her former employer, the Respondent, Armour Security Services Ltd, by whom she had been employed as a CCTV Operator/Security Officer from 22 October 2000 until her resignation effective on 22 May 2002. Her claim was resisted by the Respondent. Dismissal was denied.
2. The matter came before an Employment Tribunal chaired by Mr P Willans on 19 November 2002. By a Decision with Extended Reasons promulgated on 16 December 2002 the Tribunal dismissed her complaint, finding that the Respondent was not in repudiatory breach of contract entitling the Applicant to resign and treat herself as constructively dismissed.
3. The Applicant, throughout the proceedings, has been represented by solicitors, Hegoda & Hegoda. On 27 January 2003, the last day for appealing, those solicitors lodged a Notice of Appeal against the Tribunal's Decision with the EAT. Attached were a number of enclosures but not, I am satisfied, a copy of the Tribunal's Decision with Extended Reasons, although there is reference to that Decision at paragraph 3 of the Notice and paragraph 5 is in the standard form, stating that a copy of the Tribunal's Decision and Extended Written Reasons is attached.
4. As paragraph 2(1) of the current EAT Practice Direction makes clear, a Notice of Appeal which does not have attached a copy of the Tribunal Decision and Extended Written Reasons appealed against, as required by Rule 3(1)(b) of the EAT Rules 1993, as amended, will not be validly lodged. This omission was pointed out to the Applicant's solicitors by letter dated 29 January. On 7 February those solicitors returned the properly constituted Notice of Appeal, it being lodged on 10 February.
5. Application was there made for an extension of time for appealing, the explanation given for the failure to lodge a validly constituted appeal in time being 'inadvertent secretarial mistake' in omitting to enclose the Tribunal Decision.
6. The Registrar considered that application but refused it for the reasons given in her Order dated 22 April 2003. Against that Order this appeal is now brought.
7. Both parties have opted to proceed in this appeal by way of written submissions. I have considered those submissions and the papers in the case and have reached the following conclusions:

(1) the original Notice of Appeal, lodged on the last day for appealing, was not validly constituted. It omitted the Tribunal's Decision with Extended Reasons.

(2) The explanation is that the Tribunal Decision with Extended Reasons was omitted by a member of the Applicant's Solicitor's staff.

(3) The appeal was out of time.

(4) Where solicitors, who have acted throughout, leave an appeal until the last moment and then omit a vital document, they fail to provide an adequate explanation for the delay in lodging a valid notice.

(5) In these circumstances I reject the Applicant's grounds of appeal against the Registrar's Order. Rule 3(1)(b) was breached. The Notice of Appeal was not validly lodged in time. The explanation for the delay is not acceptable. Applying the principles in the cases of United Arab Emirates -v- Abdelghafar [1995] ICR 65 and Aziz -v- Bethnal Green Challenge Co Ltd [2000] IRLR 111 the Registrar was, in my judgment, entitled as a matter of discretion to refuse to take the exceptional course of granting an extension of time for appealing. The apparent latitude granted by the Court of Appeal to an appellant in person in Peters -v- Sat Katar Co Limited (In Liquidation) TLR 1 July 2003 does not assist this Appellant who has been professionally represented throughout.

8. That disposes of this appeal. It is dismissed. However there is a further matter which I have been unable to raise with the parties, both being absent at the appeal hearing. It is this. Normally, as Mummery P pointed out in Abdelghafar (page 72B) the EAT will not investigate the merits of the underlying appeal on an application for permission to extend time. However, I bear in mind the observation of Sir Christopher Staughton in Aziz (paragraph 23) namely that if it is plain that the appeal has no prospect of success that must be a matter to take into account. There can be no point in extending time for an appeal which is bound to fail.
9. The primary issue before the Watford Employment Tribunal in the present case was whether the Applicant had made out her case that she had been constructively dismissed. That requires an enquiry as to whether, first, the Respondent was in repudiatory breach of the contract of employment. That is essentially a question of fact for the Tribunal. They found that the Respondent was not in repudiatory breach, for the reasons which they gave.
10. In addressing that finding in her grounds of appeal, settled by her solicitors, the Applicant has, in my view, merely sought to challenge the Tribunal's relevant findings of fact. Appeals to the EAT are limited to questions of law, not fact. In my judgment this appeal, as presently constituted, plainly has no prospect of success. On this ground also I would not extend time for appealing.