United Kingdom Employment Appeal Tribunal

SUMMARY

Practice and Procedure

Claimant was two days out of time in his Notice of Appeal against the Strike-out of his claim. While not contended to be dishonest, the Claimant was not convincing and, it was found, Claimant did not post it until day 42. The bank holiday could not be blamed. Further, the Notice of Appeal was bound to fail. Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111, CA applied

APPEARANCES

 

For the Appellant	MR T P GILL (the Appellant in Person)
For the Respondent	Mrs Catherine Parkinson (Solicitor) Messrs Addleshaw Goddard Solicitors 100 Barbirolli Square Manchester M2 3AB


 


HIS HONOUR JUDGE MCMULLEN QC

1. This case is about the late lodging of a Notice of Appeal. I have pre-read the papers and will know refer to the parties as Claimant and Respondent. It is an appeal by the Claimant in those proceedings, against a judgment of an Employment Tribunal sitting in Manchester on 8 July 2004, where the Chairman, Mr S D Robertson was sitting alone. It was registered with Extended Reasons on 21 July 2004. An application was made by the Claimant for a review, and on 12 August 2004, for reasons sent to the parties and registered on that date, the Chairman decided he would not review his decision. The Claimant represented himself and the Respondent was represented by Ms Parkinson, Solicitor, both of whom appear today
2. The Claimant was dissatisfied by the Chairman's Decision which was that the Originating Application should be struck out pursuant to rule 15(2)(c) of the 2001 Tribunal Rules, on the ground that it was misconceived. The appeal is against that. The Claimant submitted a Notice of Appeal which does bare the date of 29 August 2004. The deadline for submitting an appeal under Rule 3 of the Employment Appeal Tribunal Rules was Wednesday 1 September 2004. It was received here on 3 September, and thus was two days out of time. The Registrar has discretion under Rule 37 to extend time. She considered the circumstances which the Claimant had put before her which are set out in a letter of 9 November 2004, which says so far as is relevant:

"My Notice of Appeal I sent to the EAT was received 2 days out of time caused by the delay in the post due to the bank holiday."

The bank holiday was on Monday 30 August 2004.

3. The Claimant also advances other arguments based upon what appear to be delays by the Respondent in complying with its obligations following sending to it of the Originating Application. While Ms Parkinson has indicated there was no delay, it appears to me that those matters are not relevant to my decision on whether or not to extend time, it being accepted that the Notice of Appeal was lodged late. The essential issue for the Registrar was to decide herself whether to exercise her discretion. She paid attention to the relevant authorities which she set out in her letter, and which in turn are relied upon by Ms Parkinson. They are United Arab Emirates (UAE) v Abdelghafar [1995] IRLR 243, Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111,CA
4. The approach of an Appeal Tribunal to a late Notice of Appeal is informed by the guidance in UAE which in summary provides:

a. The grant or refusal of an extension of time is a matter of judicial discretion to be exercised….in a principled manner in accordance with reason for justice" (paragraph 22)

b. The time limits are requirements to be met (paragraph 23)

c. If the Appellant is unhappy with the decision at first instance he should act promptly (paragraph 24)

d. There is no entitlement to an extension (paragraph 25)

5. It must be noted that the Claimant expressed an intention to appeal following the Employment Tribunal hearing, which I take it was announced to the parties on the day it was given. It must also be borne in mind that a person who leaves to the very last minute the service of a Notice of Appeal, runs the inherent risk that something will go wrong. In Peters v Sat Katar Co Ltd [2003] IRLR 574 a delay in the postal service was blamed but the Claimant in that case was excused, for she had submitted an application to the Employment Tribunal more than two weeks in advance of the deadline, and thus could expect it to arrive in time.
6. The Claimant contends that he has a strong case on appeal. The Respondent contends that the Tribunal Chairman correctly struck out the Originating Application as being misconceived and it follows that an appeal is misconceived. This is not a case where the grounds of appeal set forth any reasonable prospect. For that proposition reliance is placed on comments by Sir Christopher Staughton in Aziz

"…that, if it is plain that the appeal has no prospect of success, that must be a matter which should be taken into account. There can be no point in giving an extension of time for an appeal which is bound to fail.."

Conclusions

7. I have listened carefully to what Mr Gill has told me. He has stressed that he is a litigant in person. I am by training and experience for many years in this jurisdiction, accustomed to understanding points made to me by a person not represented. I observe that Mr Gill has advanced some way upon the qualification as a Solicitor, for he has obtained a CPE and this case involves in part a claim that he was unlawfully excluded from going on the LPC.
8. In the course of his submissions he gave me account of what occurred around the last weekend in August 2004. This account is confused. He told me variously that he had gone to the post office on 28 August "and on the Friday." 28th is a Sunday and 26th is a Friday. We have together looked at the envelope in which the Notice of Appeal was sent to the Employment Appeal Tribunal. Although it is not absolutely clear, the date is September 2004. It seems to me, Ms Parkinson and the Claimant that the date is 1 September, and that of course would be the most generous reading of it. I so find. That means that the appeal was already on its last day when it was posted.
9. It is not reasonable to expect a letter posted in Manchester to arrive the same day in London. I find that the explanation given about the delay in the postal service is not sustainable. A bank holiday is not an unexpected occurrence. The Claimant posted this on Wednesday 1 September which was already the last date and there was no chance of it arriving at the Employment Appeal Tribunal within time.
10. It arrived on 3 September 2004, it was as he accepts two days outside the forty- two day period. The question is whether for the reason which he gives, I should extend the time as a matter of discretion. The two authorities which are relied on by Ms Parkinson, correctly show the way in which I should exercise my discretion. As I have indicated, those who leave their Notice of Appeal to the very last minute must run an inherent risk that something will go wrong. Those who rely on the postal service should know that there may be delays. There may well be delays around the time of a Bank holiday, but one day's Bank holiday in August is not in my Judgment sufficient to justify an excuse by the Claimant that the postal service caused a delay. Having found as I have that the letter was posted after the Bank holiday, that cannot possibly be relevant.
11. I then turn to the merits of the case for in my judgment this does fall within Sir Christopher Staughton's category of a case which is hopeless. I have confidence that it would be wrong to breathe life into this hopeless case. It has been struck out by the Chairman, it is in every respect misconceived, as the Chairman found, both at first instance and upon review and upon appeal. The Claimant seeks to bring himself within the category of an employee, or I dare say a worker, while he was an applicant for a student position at the University. His analogue of a special constable, appear to take the case no further. The grounds advanced by the Claimant were correctly struck out, and thus as a factor affecting whether I should extend time, I take the view that no injustice has been caused to Mr Gill because his case truly is hopeless, and the appeal from the Registrar is dismissed.