United Kingdom Employment Appeal Tribunal

Appeal No. UKEATPA/0274/10/CEA

UKEATPA/0364/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

                                                                                                                At the Tribunal

                                                                                                                On 18 November 2010

Before

HIS HONOUR JUDGE McMULLEN QC

(AS IN CHAMBERS)

MR D TAMINA                                                                                                     APPELLANT

NHS PROFESSIONALS                                                                                     RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

                                              APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE – Time for appealing

The Appellant was one and 16 days late in lodging a Notice of Appeal against two interim case management orders.  He was articulate and assiduous in legal research on tribunal procedure. No exceptional reason was found to extend time.  Harper v Hopkins applied.

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 two orders by the Employment Tribunal in Manchester, dated respectively 18 January and 2 February 2010.  The first is a case management order requiring various documents to be produced ahead of the Claimant’s case.  Paragraph 5, is to do with a document headed, “Statement of Fact”, from David Tamina.  Employment Judge Chapman refused the application to admit that document, but said the application must be made to the full Tribunal.  I have not seen that document but it is the essence of the Claimant’s claim. There are other matters.  At the hearing on 18 January the Claimant was not present but gave written submissions and the Respondent was represented by Miss Ely of Counsel. 

3.               The second order is in a letter dated 2 February 2010 in which Employment Judge Chapman considers further correspondence from the parties and orders a PHR to be conducted on the application to strike out the claims and whether an Unless Order should be made in respect of any failure by the Claimant to comply with the previous order.

4.               The Claimant seeks to appeal both those orders.  The 42 day period vouchsafed by the EAT Rules and Practice Direction for the receipt of a properly constituted Notice of Appeal is 42 days.  On the chronology, it is common ground that 42 days from 18 January 2010 expired on 1 March 2010 and 42 days from 2 February expired on 16 March 2010.  The appeal was properly instituted on 17 March 2010, thus being respectively 16 and 1 day(s) out of time.  The issue therefore was whether discretion should be exercised.  The Registrar considered representations in writing from the Claimant and in particular a letter sent by the Claimant with a date of 18 March 2010 directed specifically at the exercise of discretion, but which was not received by the EAT until 27 April 2010.  He offers no explanation about how this delay occurred, but nothing arises in relation to this because the Registrar did have the contents of it in mind when she made her decision, which was to refuse the application.

The legislation

5.               The relevant provisions of law and practice are set out in my judgment in Muschett v London Borough of Hounslow and others [2009] ICR 424.  Since then the Court of Appeal has decided Jurkowska v Hlmad Ltd [2008] EWCA Civ 231 and also I have decided Westmoreland v Renault UK Ltd [2009] UKEATPA/1571/08, BAILII: [2009] UKEAT 1571_08_1808, and Bost Logistics Ltd v Mr J Gumbley UKEATPA/0013/08 & UKEATPA/0179/08, BAILII: [2008] UKEAT 0013_08_2005.  Most recently the Court of Appeal has looked again at this matter in Harper & Anor v Hopkins [2010] EWCA Civ 1246 approving my judgment. 

6.               The 2008 Practice Direction and the relevant rules require a document and all supporting materials to be lodged within 42 days.  The 2005 Practice Statement makes clear that these are prescriptive provisions; there is no special treatment for litigants-in-person.  An appeal lies to a Judge from the Registrar; in effect it is a fresh hearing, sometimes with live evidence.  I make up my own mind.  In this case I have heard evidence on oath from the Claimant.  He has been tendered for cross-examination by Miss Hollyoak, who now appears for the Respondent.

The Registrar’s directions

7.               The Registrar directed herself to the relevant authorities, with the exception of one, which is Woodward v Abbey National plc [2005] IRLR 782.  She says that she is required to find that it was impossible for the Claimant throughout the whole of the 42 days to lodge a Notice of Appeal.  I have said since Muschett in 2007 that that is an incorrect approach, but now the matter has been put beyond doubt by the judgment of the Court of Appeal in Hopkins.  The question is, notwithstanding that legal error, is she right?  Or was the matter as it is put to me, one which I should form my own view about, differently from hers?

Discussion and conclusions

8.               The Claimant is entitled to a large element of generosity, because he represents himself.  He did have the advantage to be represented by Trafford Law Centre, but not at any stage relevant to the appeal.  He has shown himself to be highly articulate in writing.  Immediately after the first order he betook himself to the law library and there, with research and assistance, was able to find a number of authorities to support very weighty legal propositions.  He cites, for example, Latin doctrines; nemo judex in re sua, and the right to a fair hearing, audi alteram partem.

9.               I pointed out in Haritaki v South East England Development Agency [2008] IRLR 945 that the use of Latin in this court is generally not to be favoured, for I take the same view as Lord Woolf, that where the English is good enough it should be used.  In any event, a little careful research in, for example, John Gray’s Lawyer’s Latin, would show the Claimant that neither maxim is apt in this case.

10.            The point about this excursion is that the document which was written to the Employment Tribunal on 19 January 2010 in the shadow of the law library is replete with legalism and a full examination of the relevant powers under the Employment Tribunal rules.  Nevertheless, the Claimant says what he wanted was not to appeal to the EAT but to seek a variation or a review of the order.

11.            The Claimant told me he had received that document and nothing else.  I know the Registrar in her direction relies upon the fact that The Judgment booklet is freely available and sent out routinely to all parties.  I am prepared to accept that it was not sent to the Claimant here, nor any other material.  Nevertheless, that weakness appears to me to have been cured by the endeavours, successful in part, of the Claimant to obtain a legal understanding of the next stages.

12.            The next formal stage was crossfire between the parties with the order of 2 February 2010 being the product.  Unarguably that was sent and received the next day.  On 3 February some further correspondence was noted.  Again there appears to have been slippage between the date of the document and the date of its receipt by the Tribunal; the same problem that I noted in respect of the letter received on 27 April 2010 by the Registrar here.  Nevertheless, the Judge made it clear that he would not review his first order.  The challenge made by the Claimant citing those legal maxims and the regulations governing the Employment Tribunal was as to the jurisdiction of the Employment Judge to make the order.  I note that it is described by the Judge himself as an order, and it is.  So the letter of 3 February carries the matter no further, except that it plainly tells the Claimant that any route out of the 18 January order is by appeal.

13.            The Claimant tells me that he went to the Employment Tribunal on 6 February 2010 and

spoke to somebody; Mr Tamina says he was advised by a person there that no form was necessary to go to the EAT, simply a letter.  I doubt that was the information given by any Clerk at Manchester Employment Tribunal.  I think Mr Tamina misunderstood what he was told.  In any event, it is not correct for him to rely on advice given by Employment Tribunal staff; that is not their job.  What they could do is to alert him to the various websites.  I note he is on email and uses internet connections.

14.            What he did was to wait for three weeks, doing nothing.  The Notice of Appeal which was first sent to the Employment Tribunal is dated 24 February 2010.  It was not posted until 25 February 2010, and it arrived at the EAT by recorded delivery on 1 March.  It consists of ten lines.  It complains that the Tribunal made a mistake in passing an order which no reasonable Tribunal could and full particulars of the facts will follow in ten working days.  Quite correctly, the case manager in the EAT told the Claimant that this was not properly instituted.  It contained none of the relevant documents, and a letter to that effect was sent to the Claimant on 2 March 2010.

15.            It is important to understand what this letter says.  It does not in any way extend the 42 days.  It will be recalled that the Notice of Appeal such as it was, was received on day 42 and the letter makes clear that the documents must be submitted within 21 days thereafter or the matter will be archived, but it does not give any security to the Claimant that he is already within the 42 days and safe.  As he engagingly told me, perhaps he was a fool to have read it that way.  If he did he was wrong and the letter from the EAT is clear.

16.            The position then is that the Claimant waited a further 12 days before writing his Notice of Appeal; effectively a fortnight passed between his receipt of the EAT’s letter advising him the appeal was not properly instituted and its institution.  The question for me therefore is, should I extend time?

17.            It is first necessary to determine what rule applies.  I agree with Ms Hollyoak that the relevant provision is EAT rule 3(3)(b), which says 42 days from the date an order was sent.  This is because both of the documents are orders and not reasoned judgments, and therefore any argument the Claimant seeks to raise about the postal rule giving an extra two days from the date of posting for its deemed service will not apply.  These documents were dated and time ran from those dates.

18.            If however the Registrar was right to regard these as judgments under rule 3(3)(a) she has reached a decision which was open to her, and I rely on those same authorities; the decisions were made and time has expired.  Those authorities make plain that time is running and the exercise of discretion in this jurisdiction is unusual.  Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111 and United Arab Emirates v Abdelghafar [1995] ICR 65. 

19.            I do not consider it correct to exercise discretion in the Claimant’s favour.  The period between 6 and 25 February was ample time for the Claimant to have researched what he needed to do properly to institute the claim.  If he had acted promptly on 6 February the problem of the lack of documents would have been apparent and could have been corrected.  Taking an analytic approach to each of the periods within the 42 days, I would not criticise the Claimant for the steps he took following the receipt of the first order, but by 6 February he had been told by the Judge in writing and by a Clerk at the Tribunal that the only avenue open to him was appeal.  The effect of his labours during the ensuing three weeks was 12 lines in the document served on the 42^nd day.  In my judgment there is no exceptional reason for the Claimant not to have put in the Notice of Appeal earlier and I find no reason to extend the time.

20.            The same goes for the second decision, for although he is only one day out of time there is no reason why he could not have acted upon that either.  He was able properly to provide the materials as directed by the EAT, but again he did not act promptly, waiting from 3 March to 15 March to send it to the EAT, which it seems to me is indicative of his approach to these matters.

21.            I have not been addressed on the merits of these interim appeals, it not being pressed upon me by the Respondent.

Appeal

22.            An application has been made by Mr Tamina on my advising him of his rights for permission to appeal to the Court of Appeal.  He has given no reasons but I do not hold that against him; I assume they are the ones which he gave earlier.  This is a simple matter of fact and discretion and ought not to engage the weighty consideration of the Court of Appeal; it has no reasonable prospect of success.  Nor is there a compelling reason for the Court, so hard on the heels of Jurkowska, Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180 and now Harper v Hopkins, to consider the practice of the EAT in dealing with late Notices of Appeal.  Permission is refused.  Permission may be sought from the Court of Appeal within 21 days.