United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WESTMORELAND (The Appellant in person)
For the Respondent	MR L O'NEILL (Solicitor) IBB Solicitors Capital Court 30 Windsor Street Uxbridge Middlesex UB8 1AB


 


SUMMARY

PRACTICE AND PROCEDURE: Time for appealing

At 15.12 on day 42, a Claimant did not attach the Judgment and reasons to a Notice of Appeal sent by email. There were no reasons to explain his mistake nor to grant an extension. Observations on the EAT's approach. Reliance on Woodward requiring the Appellant to show it was impossible to lodge the appeal was incorrect but the Registrar correctly refused to register the appeal.


 


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.

Introduction

2. The appeal itself is an appeal by the Claimant in those proceedings against the judgment of an Employment Judge Willans (sitting alone) at Watford registered with reasons on 28 October 2008. The Claimant represented himself. The Respondent was represented by counsel but today Mr O'Neill, solicitor, appears, supporting an argument drafted by different counsel, Mr Daniel Tatton-Brown.
3. The Employment Judge rejected the claim for a breach of contract. Other aspects of the Claimant's case were withdrawn. The Employment Judge decided that the Claimant was seeking no remedy exigible in the Employment Tribunal. In any event there had been no breach of contract, simply a misunderstanding as to the nature of the Claimant's role when he applied for a job at the Respondent and was given one. The terms of the job described to him orally differed from those which he had been sent in writing, but the Judge held that there was no breach of contract, he had worked to it, and the remedy sought was not within the Employment Tribunal's remit.
4. The Claimant was at once dissatisfied and decided to appeal. He sent a Notice of Appeal on the last, the 42nd, day, 9 December 2008, by email at 15.12.
5. The Registrar held that not all of the relevant material had been included, the judgment and reasons had been omitted. These were sent two days later on 11 December 2008, again by email. She held the claim was out of time and she declined to exercise her discretion to extend time for reasons which she gave.

The legislation

6. The Registrar addressed the relevant authorities which are United Arab Emirates v Abdelghafar [1995] ICR 65, Aziz v Bethnal Green City Challenge Company Limited [2000] IRLR 111 and Jurkowska v Hlmad [2008] ICR 841. She also applied the judgment of Burton P in Woodward v Abbey National Plc [2005] IRLR 782, to which I will return (at para 16). On the basis of that material she refused the Claimant's application for an extension of time having given the Respondent an opportunity to make submissions.
7. The relevant provisions of the law and of practice are set out in those judgments and in my own judgments in Muschett v Parkwood Health Care [2009] ICR 424 and Bost Logistics v Gumbley UKEATPA/0013/08.
8. The Notice of Appeal requires to be lodged together with all supporting documents within 42 days of the date the judgment was sent to the parties. The Practice Direction 2008 indicates what documents must be included for it to be validly lodged and the Practice Statement 2005 makes clear that these are prescriptive provisions and there is no special treatment of litigants in person. An appeal is to a judge from the Registrar, in effect a fresh hearing. I make up my own mind on the basis of all the material and in this case, the Claimant gave evidence as to what occurred during the relevant period and he gas been cross-examined by Mr O'Neill.
9. Rule 37(1) gives power to extend time. It is a discretion unrestricted except that it must be exercised judicially and in accordance with principle.

The facts

10. The judgment having been sent on 28 October 2008, any appeal had to be lodged by 4.00pm on 9 December 2008. The Claimant, during the course of the previous 41 days, consulted numerous solicitors seeking representation and/or guidance. On a number of occasions he consulted the CAB. Most recently he consulted them about a week before the deadline and was advised about the deadline.
11. The advice he had been given was equivocal about whether he could present his claim to an Employment Tribunal or to the County Court. He came to the conclusion that since the Judgment had been made by the Employment Tribunal an appeal would lie to the Employment Appeal Tribunal. With that in mind he then took a week to lodge the initial documents. In making the findings which I do, I pay attention to the documentary material and to what Mr Westmoreland has told me.
12. The Claimant lodged a number of documents by email on 9 December 2008. The only evidence as to what those materials were is a copy of the inbox of the EAT. This indicates five documents having been included, but critically not four JPEGs each containing a page of the judgment of the Employment Tribunal. The complete Notice of Appeal consisted of five attachments on 9 December and a further four on 11 December. Without the judgment and the reasons of the Employment Tribunal an appeal could not be validly lodged. In the email which the Claimant sent he said this:

"My appeal is attached, complete but for the ET3 response never received from the Watford Employment Tribunal or the respondent. I trust that you will receive everything correctly, but please contact me should this not happen."

Almost immediately, that is at 15.16, an email was sent:

"Email received at EAT."

13. The Claimant considered that he did not need to follow the advice of the EAT website not to leave things until the last minute and to check that emails have been received by following up with a phone call. I find that all that was received by the EAT were all those matters identified on the EAT inbox and not the judgment and reasons contained in four JPEGs sent on 11 December, so as to qualify for a valid institution of the appeal. They came because the Claimant had received from the EAT an indication that the documents were incomplete when a case manager turned to the file.
14. The Claimant has no evidence in documentary form as to what he sent. He has not produced a copy of his own outbox. I find that the crucial documents were not received at the EAT. What he asserts is that something happened to the additional four documents in the JPEG format between his PC and the EAT. I do not accept that. I do not accept that the Claimant attached the judgment and reasons. He is not a man who accepts criticism. He did not accept, when this alternative suggestion was put to him by Mr O'Neill in proper cross-examination, that he might have made a mistake. He is wrong about that. There is no evidence to support the documents having been sent on 9 December. I do not accept the Claimant's assertion and I conclude that the appeal was not validly lodged. The email sent to him as confirmation did not change that. The email appears to be generated electronically and but I am told a case manager did actually write that. In any event it does not include an assurance that all the documents included in the email have been correctly received and/or opened.
15. That email is correct. On my finding the notice given to the Claimant is that his email has been received. If I went further to say that it is capable of giving a reassurance that everything attached to the email had been received, it is also correct. The email assures the Claimant that that which he sent has been received and since all he sent were the five documents and not the nine documents confirmation of receipt of an email attaching the five documents is correctly made.

Extension of time

16. I then turn to consider whether to exercise discretion for an appeal lodged two days out of time. I have already in Bost Logistics and Muschett expressed my disagreement respectfully with the judgment of Burton P in Woodward for at para 33 it requires an examination of whether it was impossible throughout the whole of the 42 days for an appeal to be lodged. That, as I said in Muschett, is not the jurisdiction. Burton P held that that was required by UAE and Aziz but that approach is found in neither, nor is it cited or reflected in Jurkowska. Those latter three, but not Woodward, are cited in PD3.7. The Registrar relied upon Woodward. Since then, HHJ Hand QC has expressly approved and followed Muschett to the letter: Hakim v The Italia Conti Academy of Theatre Arts Ltd UKEATPA/1444/08. I hold that it is wrong to require an Appellant to show that throughout the entire 42 days it was impossible, or not reasonably practicable, to lodge an appeal, or to withhold discretion if there was a stage in the 42 days when the Notice of Appeal could have been lodged. Impossibility is not just a good excuse, it is perfect. None of the examples in PD3.7-8 is impossibility of performance. Reasonable impracticability (as for presenting a claim in Employment Rights Act 1996 s 111) is not the test either, but it may be a useful guide. This is an open discretion available to the Registrar or to a judge to exercise judicially in accordance with established principles. What is required is an acceptable explanation, excusing inaction or imperfect lodging of the appeal, during each stage within the 42 days, or a compelling other reason.
17. I have outlined the principles to the Claimant and they include an examination of what was happening during the previous 42 days. It is made plain by Mummery P in UAE that those who leave it to the last minute must suffer the consequences of something going wrong, as it usually does, because it cannot be repaired. I am not satisfied that a full explanation excusing inaction throughout the 42 days has been given to me.
18. The Claimant is articulate and computer literate and was at once dissatisfied with the Tribunal judgment so that he sought advice. He has not given me an explanation which I would accept as an excuse for not doing anything in the previous 41 days. It is true that people should seek advice before lodging an appeal on a question of law to the EAT and I would of course allow time for that. Having been informed from various written and human sources that there was little prospect of success in the EAT, it was finally reiterated to him a week or so in advance of the deadline by the CAB, that the place to appeal a judgment of the Employment Tribunal is the EAT. He knew about the time limit and he did not observe it.
19. True it is that when alerted to the fact that his email had been deficient of the requisite documents he acted promptly. I also bear in mind that he argues that he was reassured by the email but I have decided what contents which were sent, and this email was correct. No misleading assurance was given to him. I have also cleared up an issue on the website which advised email senders that the maximum input was 2Mb. As a matter of fact, the EAT has been assured by its server that the maximum is 10Mb and that the Claimant's documents as a whole when properly instituted were 4Mb. I accept the evidence from the server that if a document was over the megabytes permitted to be received, the whole email would be rejected and sent back with a notice to sender and recipient. All of that is irrelevant now although it was a distraction in the early stages of this appeal. The Claimant sent 1.8Mb on 9 December and a further 2.2Mb, the judgment and reasons, on 11 December.
20. I have also been asked by Mr O'Neill to consider the intrinsic merits of this case, jurisdiction which exists by virtue of the judgment of Sir Christopher Staughton in Aziz at paragraph 70 where he said the following:

"I would only add this in relation to the merits. Mummery J said at p.246 of the United Arab Emirates [1995] IRLR 243 case …, that the merits are usually of little weight and they should not be investigated in detail. I agree with that. But I would however say 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. …."

This case has no merit whatsoever. The dispute is not one which would give rise to a claim for breach of contract in the way the Claimant formulated it. I would have a heavy heart if I were turning down on technical grounds an appeal which was laden with merit. It has none.

21. I will make some remarks about the Claimant's attitude to this appeal. As I told him when he was giving evidence, on paper he presents as arrogant, contemptuous, rude, foul-mouthed, abusive and bullying. Many of the emails he has sent to case managers and judicial office holders have got through the GSI simply because of the use of *** to disguise the foul and intemperate language. He has made threats to the careers of individual officers and case managers. He is dismissive of Employment Tribunals and believes the EAT is not a proper court. His presentation in court, faced with cross-examination, does not live up to that image.
22. I reminded him that by Employment Tribunals Act 1996 ss 22, 29 the EAT has all the powers of the High Court and if he said those things at the hearing I would send him to prison. He has attempted to explain part of this as a result of type 1 diabetes and I accept that sometimes when hypoglycaemic he becomes aggressive. But that does not explain this language which continued for nine months. He has however in open court expressed his unreserved apology for his approach and I will ensure that all case managers who have suffered his abuse are aware of it. As the Claimant says, he is seeking justice. Those who come to this court seeking justice must themselves do justice. He is an employee aggrieved as a result of his treatment by an employer. He should understand the difficult tasks of employees working for the Ministry of Justice in handling cases such as his. He is not alone. There are currently about six claimant-appellants who approach the preparation of their appeals by bullying email and phone calls. They should know that case management and office administration in the EAT is designed to get their cases decided expeditiously at the appropriate level, and the overriding objective requires them to co-operate and if they do not their appeals will be stayed or dismissed under Rule 26.
23. The appeal is dismissed.