United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M R SHOJAEE THE APPELLANT IN PERSON
For the Respondents	MISS A PROOPS (of Counsel) Instructed By: City of Bradford Metropolitan Council Legal Services City Hall Bradford West Yorkshire BD1 1HY


 


JUDGE J McMULLEN QC:

1 On 9 October 2002 the Registrar considered the Notice of Appeal sent in by the Applicant and having considered the factors set out in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111, as further elaborated in United Arab Emirates v (1) Mr Abdelghafar (2) Dr A K Abbas, she decided that the Notice of Appeal had been presented out of time. She did not see any exceptional reason, consistent with those two authorities, why the Applicant should be excused the obligation to present the appeal on time and declined to exercise her discretion to extend time.

2 The Applicant has appealed against that decision, indicating that misleading material was put before the Registrar, by the Respondents, as an attempt vexatiously to mislead her, in respect of what the real issues in this case are. I have heard this matter developed in argument and read the materials which Mr Shojaee and Miss Proops, appearing for the Respondent, wished me to see. Mr Shojaee has not indicated that I too am misled by documentation.

3 I have decided that the Registrar made the correct decision; it is a decision which I myself make, hearing this matter afresh. The relevant principles set out in the above cases indicate that I should consider what the explanation for the default is, whether it provides a good excuse and whether there are circumstances justifying the EAT taking what has been described as "the exceptional step" of allowing an appeal out of time.

4 The Tribunal, which consisted of the Chairman and one Member, made a number of decisions.

a. On 31 May 2002 the Tribunal decided that the Applicant had to pay a deposit, as a pre-condition, for his continued participation in the proceedings.

b. On 16 May the Tribunal made a decision in relation to certain of the proceedings.

c. The Tribunal also struck out the proceedings because the Applicant had not complied with its Order and, so far as is relevant to my hearing, an Order for Directions was made on 2 May 2000.

5 The Applicant seeks to appeal certain aspects of the 2 May Order, relating to the consent which he should give to the disclosure of his medical records. The context therefore for my consideration, is the background to all those other matters about which I was due to hear, in advance of this appeal, on an application for directions. I have decided the logical order of these matters is to hear this appeal first. My attention has been drawn, by way of background, to the fact that the Employment Tribunal has struck out all of the proceedings in this case, since the Applicant failed to carry out his responsibility to pay a deposit. It has been suggested, the Rule for striking out his mandatory under Rule 7(7) irrespective of whether the Applicant succeeds in an appeal to the EAT.

6 Insofar as that background is relevant to my decision, I note that no hardship will occur to the Applicant if Miss Proops' argument is accepted; that the Tribunal indeed had no alternative but to strike out. However, I prefer to make my decision on the basis of the material which is properly before me, and without reliance on the detailed background in relation to the other proceedings.

7 The Order against which the Applicant appeals was issued on 2 May 2002. On 13 August 2002 he conceded that the Order had been sent to him on that date. The Notice of Appeal was received on 25 June 2002, twelve days later than the 42 days required by Rule 3(3). The Applicant is experienced in relation to Tribunal proceedings and therefore would have known the date. The Rule requiring a Notice of Appeal to be valid also requires Extended Reasons to be attached to it. I have no doubt that the Extended Reasons for the decision, against which he now appeals, were given on 2 May.

8 In those circumstances the chronology is correct and the application is made for an extension of time. The Applicant is experienced. He has not presented to me any demonstrable excuse, except what appears to be a misunderstanding about the requirement in the Rule that the Extended Reasons should accompany the Notice. Since I have decided that the relevant date of the Order it is 2 May, the Notice of Appeal does not comply with Rule 3.

9 It seems to me that, even though there was a sequence of Orders in this complicated case, there is no doubt that the Applicant had in mind a dispute with the Respondents about the Order which had been made for disclosure of medical records and, if he did not agree with it, he should then have appealed when he first saw the Order of 2 May.

10 In the circumstances, therefore, he is out of time and I have been given no reason according to the authorities above to take the exceptional step of allowing the appeal to go ahead. The appeal against the Registrar's Order is dismissed.