United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No Appearance or Representation By or on Behalf of the Appellant
For the Respondent	MISS S PALMER (of Counsel) Instructed by: Royal Mail Group Plc Impact House 2 Edridge Road Croydon Surrey CR9 1PJ


 


HIS HONOUR JUDGE J McMULLEN QC

1. This is an appeal by the Applicant in proceedings currently under way in the Employment Tribunal at Stratford E against the Respondent. It is an appeal against the order of the Registrar sealed on 7 July 2003. The Registrar decided that the Applicant's Notice of Appeal dated 16 April 2003 which was served on 23 April 2003 was out of time.
2. The chronology is that the Applicant's Originating Applications date from August 2002 and an order was made by a Chairman in Stratford giving directions. I will come to that in due course.
3. The first issue is to decide whether the Applicant's claim was in time and, if so, the matter will go forward; if not, to decide whether the Registrar correctly exercised her discretion in deciding that the matter should not proceed.
4. The Applicant has submitted written representations which I have taken into account. The Respondent is represented today by Miss Suzanne Palmer of Counsel who has provided a written Skeleton Argument which, if not already been sent, will be sent to the Applicant.
5. The Registrar decided that the appeal was six days out of time. She based her decision upon consideration of Aziz v Bethnal Green City Challenge Co. Ltd [2000] IRLR 111 and United Arab Emirates v Abdelghafar (Court of Appeal).
6. The Notice of Appeal which the Applicant drafted raises a number of criticisms which I will come to in due course; but the indication which the Applicant gives is that he was late in presenting his Notice of Appeal because of his medical condition which is diabetes and high blood pressure, and the occurrence of statutory holidays, and that he had been under financial strain. As to the first, no medical evidence is contained within the application and I do not accept the mere assertion of that medical condition as being sufficient excuse for failing to put in an appeal six days out of time.
7. The Applicant is highly articulate, using computers and email, and shows a considerable amount of research in his documentation. I do not accept on his mere assertion that diabetes and high blood pressure was a reason for registering an appeal, which was otherwise cogently made, six days late.
8. It is apparent that the Applicant was taking legal advice during the 42-day time limit prescribed by statute; for in his letter of appeal he indicates as follows:

"By the time I obtained legal advice, then I realised that I was almost out of time to put in the first notice of appeal." (my emphasis)

9. I accept the Respondent's submission that had he acted at the time of taking legal advice he would have still been in time. Nor do I accept the Applicant's contention that the bank holidays which took place on 18 and 21 April caused further delays in the Notice of Appeal arriving on time. Those are annual statutory Easter holidays, prescribed long before the enactment of the legislation relevant to this case, and do not stop the counting of time (except for the last date for counting, which does not apply here).
10. I have no indication of the relevance of financial strain to the lodging of the Notice of Appeal in time.
11. It seems to me that the Applicant has not put forward a proper explanation for his default. Even if those matters in his letter do constitute an excuse, they do not provide a good enough excuse, in my judgment, and I see no reason to take the exceptional step of allowing the appeal out of time.
12. The judgments which I have cited relied on by the Registrar impose conservative time limits which must be observed. I see no reason for making an exception of the Applicant's case and I bear in mind that he may well
13. I accept the Respondent's arguments as set out in Miss Palmer's Skeleton Argument for refusing the appeal and it is dismissed.
14. Miss Palmer has made an application under Rule 34 that the Applicant should pay the Respondent's costs in the sum of £650 caused by her attendance today with a solicitor. The basis is that the Applicant has unreasonably conducted himself.
15. The Applicant has not attended today and has decided that the matter should be dealt with on paper. We do not discourage such applications; but no significant grounds have been advanced today by way of a challenge to the Registrar's Order, nor any further explanation has been given for the failure to meet the requirements of the statute that an appeal be lodged within 42 days.
16. I was conscious of the Applicant's financial strain but he continues to be employed. The points in his letter I have judged to be insubstantial and had no hope of success.
17. I consider his conduct is unreasonable under Rule 34. It would however be unjust for me to make an order in the sum asked by Miss Palmer. I will order a sum to be paid which could properly represent basic costs in the sum of £50. I make it clear that because the background to the Applicant's current proceedings includes some failure by the Applicant to carry out sensible steps in the preparation of the case, the sum would have been very substantially higher towards the figure put forward by Miss Palmer had I not considered that a token award of £50 would meet the objective. The objective is to make clear to the Applicant that he must take these legal proceedings seriously, must concentrate on preparing for the ET hearing and must not bring unreasonable appeals under Rule 21.