United Kingdom Employment Appeal Tribunal

Appeal No.  UKEATPA/1315/09/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

                                                                                                                At the Tribunal

                                                                                                                On 8 July 2010

Before

HIS HONOUR JUDGE McMULLEN QC

(AS IN CHAMBERS)

MR P DOOTSON                                                                                                   APPELLANT

ROYAL MAIL PLC                                                                                            RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

                                              APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE – Time for appealing

The Appellant completed and signed a Notice of Appeal on 23 September 2009 but his lay representative made a mistake by calculating that the deadline expired on 7 and not 5 October 2009, and he lodged it 2 days out of time.  There was no explanation for the delay up to the deadline and discretion was refused under rule 37.

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, two days out of time.  I will refer to the parties as the Claimant and the Respondent.

Introduction

2.            The appeal itself is by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal sitting at Manchester, chaired by Employment Judge Chapman, given with reasons after a four‑day hearing on 24 August 2009.  The judgment was that the Claimant was not disabled. His unfair dismissal claim was not made out.  The Claimant was represented by Comrade John Stoker, as he prefers to be known, a lay representative; the Respondent by Ms Adams, a solicitor.

3.            The Claimant was dissatisfied with those decisions and sought to lodge a Notice of Appeal, the time for doing so is 42 days from the date the judgment was sent.  It is common ground that the 42‑day period expired on 5 October and this appeal was filed on 7 October 2009.

The legislation

4.            The relevant provisions of law and practice are set out in my own judgment in Muschett v London Borough of Hounslow & Ors [2009] ICR 424.  Since then the Court of Appeal has decided Jurkowska v Hlmad [2008] EWCA Civ 231 and also I have decided Bost Logistics v Gumbley & Ors UKEATPA/0013/08.  The impact is that, in accordance with the rules and the Practice Direction, an appeal should be lodged within 42 days that the judgment is sent.

5.            The 2004 Practice Direction indicates what documents must be included and the 2005 Practice Statement, made by Burton P, makes clear these are prescriptive provisions and there is no special treatment for litigants in person or for persons represented by lay people.  An appeal lies from the Registrar to a Judge; it is effectively a fresh hearing, sometimes with live evidence.  I make up my own mind on the basis of all the material before me.

6.            The Registrar’s decision was that the Notice of Appeal was lodged two days out of time; that is common ground.  She decided not to exercise her discretion under rule 37; she considered the relevant authorities which include Sian v Abbey National plc [2004] IRLR 185, Gdynia American Shipping Lines (London) Ltd v Chelminski [2004] ICR 1524 and United Arab Emirates v Abdelghafar & Anor [1995] ICR 65, Mummery P, as well as Jurkowska above.  She also considered Woodward v Abbey National plc [2005] IRLR 782.

7.            As I have held in a number of cases, see above, it is not a requirement of the rules that a person seeking indulgence has to show that throughout the whole of the six weeks it was not possible to put in a Notice of Appeal.  Rimer LJ, deciding a permission to appeal application from my judgment in Harper v Hopkins [2010] EWCA Civ 742 made no criticism of my approach to this issue (see paragraph 26).

8.            It appears to me, in favour of the Claimant, that the Registrar has made an error of law in requiring to be satisfied that it was impossible throughout the whole of the six weeks period to comply.  The question for me is whether, notwithstanding that error, the decision of the Registrar was right or, more generally, I, having heard more material at a fresh hearing, form my own decision as to what is correct.

9.            To some extent evidence has been given by Comrade John Stoker and, for that reason, I invited him to take the oath. On mature consideration, Ms Adams decided not to cross‑examine him on the material because she accepted, broadly speaking, the facts that he had set out.

The facts

10.         The Notice of Appeal is comparatively short, although I have no doubt a good deal of industry was put into it by Comrade John Stoker on behalf of Mr Dootson.  It is nine pages.  It includes criticisms of errors of fact, criticisms of the Judge and failures to abide by various orders.  Significantly, it is signed by the Claimant on 23 September 2009.  I am told that he was suffering from trauma.  Nevertheless, this document exhibits the informed response of the Claimant to the adverse judgment and would, if it were in time, be a proper vehicle for the presentation of the argument which he wishes to raise on appeal.

11.         Comrade John Stoker made a mistake.  He noted incorrectly that the time for complying was 7 October 2009.  He put that matter before the Registrar.  He puts it again before me, shorn of two other reasons which were ventilated before the Registrar and which she dismissed.  These were that Comrade John Stoker was waiting upon a decision on his application for a review and that the Claimant was seeking legal assistance.  Those two latter reasons have fallen away and Comrade John Stoker focuses solely upon his own mistake.

12.         Comrade John Stoker is experienced in Employment Tribunal and EAT proceedings.  He tells me he has, in his own case, successfully appealed to the Court of Appeal and has helped at least one other person.  He works in the community providing assistance for, as is well known, legal assistance is sparse.  He has put before me relevant documents for the purposes of the hearing, together with a supplemental bundle. I have taken time, during the course of the hearing by adjournment, to read the passages which he has cited to me.  They include authorities, in particular Hakim v Italia  Conti Academy of Theatre Arts & Anor UKEATPA/0144/08, evidence in witness statement form put before the Employment Tribunal by the Claimant and by a relevant manager, and the relevant procedures of the Respondent for dealing with absence.

13.         With some irritation, Comrade John Stoker complains that I had not been shown them in advance of today.  That was the order of the Registrar but he may be assured now that I have not only read them but, at his invitation, carefully considered them.  With respect, they do not advance my understanding of the factual issue as to the out of time appeal or the reasons for exercising discretion, which is what this appeal from the Registrar under rule 21 is about.  What is new today is the contention by Comrade John Stoker that indulgence should be given to him because he is aged 75 and people of 75 are prone to make genuine mistakes.  He made a genuine mistake as to the date and so time should be enlarged.

14.         On behalf of the Respondent, Ms Adams addressed her careful skeleton argument which sets out the relevant authorities.  She reminds me that the approach as set out by Mummery J in UAE is to seek the explanation for the default, whether it provides a good excuse and whether the exceptional step should be taken of granting an extension of time.  Realistically she accepts that there has been an explanation and that it might provide an excuse, but she trains her fire on the alleged exceptional circumstances.  She reminds me that the circumstances are the same for lay and legally represented persons, Comrade John Stoker knew the deadline. Everything was in place on 23 September 2009, almost two weeks before the deadline, for the appeal to be lodged, and yet it was not.

15.         As Mummery J observed, those who leave to the last minute the presentation of a Notice of Appeal run the risk that something will go wrong.  In my judgment there is no justification for me to extend the time by two days in the light of Comrade John Stoker’s mistake.  As part of his submissions today he wanted to dilate upon the authorities cited by Ms Adams in her skeleton argument and conveniently placed before, of which there are ten.  The purpose of this was to indicate that the substantive appeal has merit.

16.         In her oral submission Ms Adams did not invite me to take a view about the merits.  The vehicle for doing that is the judgment of Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Co. Limited [2000] IRLR 111 where he held that it is in certain circumstances appropriate to look at the merits where a case has none. A Judge may, look at the underlining merits and, if there is none, there is no point in breathing life into an appeal which is going nowhere.

17.         I indicated to Comrade John Stoker that generally the merits are not relevant on an appeal from the Registrar unless it is said that the case has no merit at all.  Since Ms Adams has not addressed me on that proposition, I will take it that this is not a case in which it can be said that there is no merit.  Thus, it has not been necessary for me to ask Comrade John Stoker to address me on that issue.

18.         I have great sympathy for the Claimant in having missed the opportunity to present an appeal but the rules are clear and this is not an exceptional case.  It is important, of course, to look at the end period of any deadline (see Schultz v Esso Petroleum Ltd [1999] ICR 1202).  So, intense scrutiny is given to the last few days of a deadline, but here the end-period begins on 23 September 2009 and I had no explanation for the delay up until 5 October 2009.  The sole explanation now available is a mistake.  It seems to me, therefore, that the original presentation of the explanations, as being in three parts, is also relevant.  The Registrar, in my judgment, correctly dismissed the application based on waiting for the review and an application for legal aid.  So, there remains only the one.

19.         I am grateful to Comrade John Stoker for his submissions today.  I know that he is strongly critical of the way Employment Judge Chapman conducted the hearing. He repeatedly focussed upon the wise words of Sir Thomas Bingham MR dealing with fairness.  He pointed out that Tom Bingham, as he prefers to be known, has written an excellent book, The Rule of Law, for which he, Comrade John Stoker, is about to provide amendments and comments.  I have a comment.  He is one of several eminent judges who have pointed out that the most important person in a courtroom is the losing party.  Comrade John Stoker thanked me for the fair hearing that he was given.  His comments about the way this hearing has been conducted indicate, I hope, that Mr Dootson will feel that justice has been done to his case.  Comrade John Stoker has put before me every point which is available to him.

20.         As he foreshadowed at the very outset of this hearing, if my judgment were against the Claimant, Comrade John Stoker would seek permission to appeal, and so he does.  Of course the Claimant does not know my reasons as he is not here but I will assume he gives his consent for this application.  I see no compelling reason for this simple exercise of discretion to take up the valuable resources of the Court of Appeal, nor for it to consider the practice in the EAT so hard upon the heels of judgments such as Jurkowska and Woods.  There are no reasonable prospects of success either. The appeal is dismissed and permission to appeal is refused.