United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Written submissions
For the Respondent	Written submissions


 


SUMMARY

PRACTICE AND PROCEDURE

Appellate jurisdiction/reasons/Burns-Barke

A Notice of Appeal without supporting documents was lodged on day 41 at the Employment Tribunal and forwarded to the EAT on day 42 with missing documents lodged on day 45. The substantive appeal had no merit. A discretionary extension was refused, no explanation being given for the first 41 days, or the incomplete and mistaken lodging at the Employment Tribunal.


 


HIS HONOUR JUDGE McMULLEN QC

1. This is an appeal from the Decision of the Registrar not to allow the registration of a Notice of Appeal sought to be lodged by the Appellant. I will refer to the parties as the Claimant and the Respondent. The Claimant indicated that it was too expensive to come by rail. I invited the Respondent to agree to have the case dealt with on the papers and it did.
2. The appeal itself is an appeal by the Claimant in those proceedings against the Judgment of an Employment Tribunal chaired by Employment Judge Hughes, sitting at Birmingham, registered with reasons on 16 December 2008. The Claimant was represented by his mother and the Respondent by a consultant. The Claimant claimed unfair dismissal. The Tribunal dismissed the claim. The Claimant seeks to appeal. The deadline for submitting a notice was 27 January 2009.
3. On 26 January documents were sent to the Employment Tribunal in Birmingham. A clerk faxed them to the EAT and since they were received after 4.00pm they were deemed to have been lodged at the EAT on the 27 January, day 42 of the 42-day period required by Rule 3(3). They did not include the ET1, the claim, or the ET3, the response, so the appeal was not validly instituted in accordance with Rule 3, Practice Direction 2008 and the Practice Statement 2005.
4. The Registrar, having invited submissions, came to the conclusion that the documentation was not correctly instituted. She criticised the way in which the member of staff at the Birmingham Tribunal had responded, for it is not that member of staff's duty to do the Claimant's job for him but was required to send back the Notice to him. The Registrar refused to exercise her discretion.
5. There seems no dispute that the full documentation was not received until 30 January 2009, three days out of time, so the issue is whether discretion should be extended. The relevant provisions of the law and practice are set out in my Judgment in Westmoreland v Renault UKEATPA/1571/08.
6. The sole basis upon which the Claimant's mother argues that the appeal should be registered is that the Employment Tribunal is under a duty to forward to the EAT documents lodged with it. That is not right (see the Judgment of Pill LJ in Dunham v Hull and East Riding Overseas Plastic Surgery (A2/2006/0214)). In any event, the documents sent to Birmingham and on to the EAT were not sufficient to constitute a valid appeal.
7. No explanation has been given to me as to why the Claimant and his mother waited for 41 days before attempting to lodge a Notice of Appeal and in the absence of that I hold that there has been no excuse for 41 days. Only a hint of it arises in relation to the Claimant's mother's indication to the Birmingham Tribunal that she had just received the Review Judgment. The decision was to affirm the previous Judgment. Even if the Claimant was waiting for the outcome of the review, he would have received that on 21 or 22 January and I see no reason for any further delay.
8. In exceptional cases I can take account of the merits: see Aziz [2000] ICR 111 CA. I do here. This appeal seeks to re-argue all the factual issues, as the Claimant's mother indicates in her Notice of Appeal and skeleton argument. The law was correctly applied as to the dismissal of the Claimant but she takes issue with the credibility of the witnesses and certain of the factual findings. I see no prospect at all of that appeal succeeding and so I hold on that ground too that discretion should not be forthcoming. The appeal is dismissed.