Appeal Nos. UKEATPA/0703/11/DA
UKEATPA/0704/11/DA
UKEATPA/0705/11/DA
UKEATPA/0715/11/DA
UKEATPA/1552/11/DA
EMPLOYMENT APPEAL
TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At the Tribunal
On 23 November
2011
Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
MISS
P PAW APPELLANT
HM
COMMISSIONERS OF REVENUE & CUSTOMS RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEAL FROM REGISTRAR'S DIRECTIONS
HIS HONOUR JUDGE McMULLEN QC
Introduction
1.
I gave common directions at the beginning of my list today. In respect
of an appeal from a direction of the Registrar, 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
decided Jurkowska v Hlmad [2008] ICR 841. The Court of appeal
has expressly approved my approach to appeals of this nature and the practical
effect of late appeals in Miller v Lambeth Primary Care Trust
[2011] EWCA Civ 722, Harper v Hopkins [2010] EWCA Civ 1246 and Zinda
v Barn Hill Community High & Ors [2011] EWCA Civ 690.
2.
The EAT Rules require a Notice of Appeal and all supporting
documents as prescribed by the Practice Direction to be lodged within 42 days
of the date the Judgment is sent to the parties. The 2008 practice direction
indicates what documents must be included. There is no special treatment for
litigants in person. An appeal lies to a judge. The practice statement in
2005 is prescriptive, requiring all documents to be served at the relevant
time.
3.
On an appeal against the Registrar’s decision, either that the claim was
out of time or that it was out of time and that discretion would not be
extended, lies to me. I make my own decision on material available to me,
sometimes with live evidence. My approach to applications under rule 3(10) is
informed by the Judgment I gave in Haritaki v South East England Development Agency [2008] IRLR 945, at paragraphs 1 to 13, which should
be read with this Judgment. That approach has been approved by the Court of Appeal
in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240.
4.
On the sift of a Notice of Appeal, a judge exercised power under rule
3(7) to conclude in chambers that the case had no prospect of success. Where
no point of law is found, s.21 of the Employment Tribunals Act
deprives the EAT of jurisdiction to hear the case. The Claimant in each case
is given the opportunity to amend, or to have the case heard before a judge
under rule 3(10). I form my own view on material available to me at this hearing,
necessarily in the light of more than was available before the procedural
judge.
5.
I will refer to the parties as the Claimant Ms Paw and the
Respondent HMRC. This is an appeal from a decision of the Registrar in respect
of five decisions, it is said, of Employment Tribunals. The Registrar’s
decision was made on 14 June 2011 and an application for review was
made, which was refused by the Registrar, on 18 July 2011.
Technically, the vehicle for this appeal is the latter, although the substance
of the appeal is contained in the Registrar’s response in the former.
Postponement
6.
After I had given the above directions, and accepted Ms Paw’s
apologies for her late attendance, an application was made by her, who attends
today accompanied by three members of her family, for an adjournment. The
application is on medical grounds. I have been shown the recent attendance
record at her GP Dr Rajesh Kapur’s surgery. This indicates a long history of
headaches, hand pains and various other matters, including fibromyalgia,
anxiety, panic attacks and RSI.
7.
The most recent event is a visit yesterday, 22 November, where the
GP records the following:
“Attended today as tearful, stressed. Has Tribunal tomorrow at London. Getting dry cough. Ongoing proceedings since 2007. Very stressed. Always
preoccupied with Tribunal. Finding difficult to work on, benefits being
stopped. Financial difficulties making matters worse.”
8.
I have done the best I can with the doctor’s handwriting. The gist of
it is plain. On the basis of that, the application is made for an
adjournment. This is nothing new. This case was listed in early August. The
Deputy Registrar and I, in turn, have rejected applications made on various grounds
for a postponement of today’s hearing. I gave reasons for that in a paper
application. This case is a very old case and the matters and should be
progressed.
9.
The GP’s note does not indicate any reason why this case should not be
heard today, or any date (if it could not be heard today) on which it could be
heard. These are long-standing conditions the Claimant has. She is disabled.
She said today that she would be unable to deal with the complexity of the
case. I have a full view of the litigation in which the Claimant is engaged.
This part of it is a very minor part, and the arguments to be addressed are not
difficult, or they ought not to be.
10.
The Claimant has RSI. I am not surprised, given that she writes 134 pages
principally in manuscript, which takes 1 hour and 20 minutes to get through our
fax system. I have read most of this. Nevertheless, this is a person who can
make, out of the most simple matter, the most outrageously complicated
arguments. I have decided that the Claimant, with whatever adjustments she seeks,
can be accommodated today and she has been able, with the assistance of her 134
page skeleton argument, to address me on the short issues which arise in the
Registrar’s decision. She is at no disadvantage. I have adjourned twice
during today’s hearing so that she may compose herself and address the
arguments with the proper focus.
The letters challenged
11.
Today’s appeals have to be seen in context. The Claimant’s claims go
back a long way. HHJ Serota QC heard an application by the Claimant
under rule 3(10) on 14 April 2010, and reference should be made to
his Judgment for the background. The Claimant did not work since 2003 and was
dismissed in 2007. All her claims against the Respondent have now been struck
out or dismissed. She failed to carry out orders of the Tribunal and, in
May 2011, what remained of her grievance against the Respondent was struck
out.
12.
Appeals against that and other matters are still before the EAT and, in
January 2012, there will be a hearing of an appeal against the strikeout and
possibly other matters. What remains to be decided today is the correctness of
the Registrar’s decision. The five sources feeding the single Notice of Appeal
emanate from the Tribunal and elsewhere. The Notice of Appeal of the Claimant
was sent on 28 April 2011. It lasts for six pages. It sets out the
Claimant’s case. It is in her hand and it makes an appeal. The Registrar
decided the following:
“The appellant has lodged 4 appeals at this court. They are in
respect of letters from the employment tribunal to the appellant dated the 2nd
March 2011, the 18th March 2011, the 30th March 2011 and an undated letter sent
around the end of March (all related to ET case number 1901842/2007). An appeal
lies to the Employment Appeal Tribunal from the judicial decisions of the
Employment Tribunal. It does not lie in respect of administrative decisions and
it does not lie in respect of correspondence of whatever nature that does not
contain a judicial decision.
The letter of the 2nd March 2011 is not a judicial decision. In
fact it simply refers the appellant to orders made previously with which she
must comply. Therefore no appeal lies in respect of this letter and in any
event the appellant would be out of time.
The letter of the 18th March is not a judicial decision. It
merely states that the appellant's correspondence has been placed on the file.
It would be out of time in any event.
The letter of the 30th March does not contain a judicial
decision. The Employment Tribunal declines to provide advice and refers the
appellant to the complaints procedure.
The undated letter equally does not contain a judicial decision
and is written by a member of the administrative staff pursuant to a complaint
against members of staff.
Accordingly as these decisions are not judicial decisions no
appeal can lie in respect of any of them. They are an abuse of the process of
the court. No further action will be taken in respect of these purported
appeals.”
13.
Against that, the Claimant sought a review and the Registrar then
responded in the following way.
“The Appellant has applied for a review of the Registrar’s
decision contained in a letter of the 14th June 2011. The Registrar
stated in that letter that appeal did not lie to the EAT in respect of 4
letters from the Employment Tribunal as these were simply ordinary
correspondence and did not contain any judicial decisions. This is an
administrative decision so the concept of a review does not apply. In any
event the Registrar sees no reason to revise that opinion.”
Out of time appeals
14.
The first question relates to the out of time appeals. These are
PA/0703/11, PA/0704/11, PA/1552/11. The Claimant accepts before me that they
are out of time. She however contends that she did not receive the letters
from the Tribunal, against which she appealed, until about 30 March and
that either time should run from the date she received it or time should be
enlarged as a matter of discretion.
15.
The simple solution to this is that PA/0703/11, PA/0704/11 and PA/1552/11
were received respectively 27, 7 and 56 days out of time. Even accepting the
Claimant’s case that she picked up mail from the Royal Mail in the first week
in April, the Claimant still had time to register appeals against them.
16.
I hold that the three are out of time. The Respondent has appeared in
writing at this hearing and has made written submissions against the Claimant’s
case which I accept. I see no exceptional reason to extend time. The
approach, which I set out above in the authorities, would indicate no
exceptional reason. The Claimant is a seasoned campaigner in the employment
and EAT environment, and knows well the deadlines.
17.
Accepting, since it is not challenged, that she received the four
letters from the Employment Tribunal in the first week in April, she still had
time to lodge appeals within 42 days of each of those dates and she is out of
time on PA/0703/11 and PA/0704/11, and similarly on PA/1552/11.
The “no decision” appeals
18.
The outstanding issues are PA/0705/11 and PA/0715/11. The former is not
out of time, for the appeal was lodged on 28 April 2011, and the
latter reflects an undated letter from the Employment Tribunal which, from its
content, was sent around 30 March 2011, I find. The Registrar has not
determined that these are out of time. The substance of the Registrar’s
decision, however, is as to the jurisdiction to entertain an appeal against the
decisions, and so it is necessary to look more carefully at what is contained
in the letters appealed against. PA/0705/11, not subject to an out of date
ruling, contains the following:
“I refer to your letter dated 18 March 2011 which has been
referred to Employment Judge Solomons who says that the Tribunal cannot give
advice save to say that if you disagree with a judicial decision, as you are
already aware, you can appeal to the Employment Appeal Tribunal on points of
law. Furthermore, if you have a complaint about other matters the you [sic]
should write to the Regional Employment Judge.”
19.
In my judgment, that does contain a decision by a judge. The important
thing to note is that the gateway to an appeal to the EAT is through s.21(1) Employment Tribunals Act 1996,
which provides as follows:
“An appeal lies to the Appeal Tribunal on any question of law
arising from any decision of, or arising in any proceedings before, an
Employment Tribunal under or by virtue of [the named statutes].”
20.
This is very wide. It includes an appeal against an omission, or an
unreasonable delay where by definition there is no judicial decision. It
extends to an allegation of actual or apparent bias, and automatic
disqualification for having an interest, in imminent or current proceedings,
before any adverse decision is made. The letter of 30 March contains a
reference to the Employment Judge, who has given an instruction to the
Secretary of the Tribunals, which has been communicated to the Claimant. If
the Registrar had considered the full scope of s.21 in respect of this matter,
she would, in my judgment, have been bound to consider that this does indeed
arise in proceedings which the Claimant has ongoing before the Employment
Tribunals. So, as a matter of jurisdiction, with respect, she is not correct,
and I accept Miss Paw’s argument that it does fall within the scope of
s.21(1), although not precisely for the reasons which she has given. Arguably,
it contains a decision by Judge Solomons but, in any event, it does arise
in proceedings which are ongoing.
21.
I then turn to the undated letter which I hold to be about
30 March 2011. This, too, relates to complaints made by the Claimant
as to matters addressed to the judge. It contains a reflection on the
Claimant’s complaint that matters were not proceeding as quickly as they
should. A plea is made by the officer of the Tribunal that precedence has to
be given to cases relating to imminent hearings. There is an indication that
the material which the Claimant adduces is the same as she had already
produced, and so no further action would be taken. In my judgment, that too
reflects a decision made either by, or on the instructions of, the Employment
Judge. This relates to a complaint and complaints can be made administratively.
It is arguable that this letter contains either a decision or something to do
with matters arising before the Employment Tribunal. So, on that too, I accept
the Claimant’s arguments. That means that the appeal against the Registrar’s
Judgment succeeds in respect of these two letters.
22.
Returning to 1552/11, in addition to it being out of time, I would hold
that the Registrar is right about this because it is to do with correspondence
between the Employment Tribunal and the Claimant’s MP. I would take the view
that this is not a decision of the Tribunal and it does not arise in the
proceedings but, in any event, I have already decided that the appeal is out of
time and should not be allowed.
Next steps
23.
What happens next? This case goes into the sift. I invited Ms Paw
to consider, in the light of the stress she has in coming to a Tribunal,
attested to by that letter from her GP and by Dr Kapur in his letter of
8 July 2011, whether I could deal with it as a rolled-up 3(7)/3(10) hearing.
She says she wishes to have representation from ELAAS, and I respect that, and
so this case cannot be disposed of today.
24.
However, I am now seised of the Notice of Appeal. In my judgment, for
the reasons I have given above, this case has no prospect of success. The
first letter, that is appeal PA/0705/11, is simply a rehearsal by the Tribunal
of its earlier decision. A party cannot make live a decision which is already
taken simply by writing again. In any event, there is no question of law here,
as the judge said: if you disagree with any judicial decision, you can appeal
to the EAT on points of law. That is quite correct. If you have a complaint
about other matters, you can appeal to the Regional Employment Judge. That too
is correct. No question of law arises out of that.
25.
Further, as the Claimant has complained, she is getting the benefit of
the complaints procedure and it is an abuse of the process of the EAT to come
to the EAT on matters which are properly within the remit of complaints on
administration. So, that case will go no further. It is, if anything, the
exercise of discretion by Judge Solomons, and I see no reason to interfere
with it.
26.
I then turn to the undated appeal of PA/0715/11. This suffers from the
same defects. The Officer of the Tribunal was entitled to hold that this was a
letter of complaint and respond as an administrator. She confirmed that
matters were sent to the judge, that matters were being dealt with as quickly
as possible and no further action would be taken because it is, essentially, a
repetition of the matters already decided, following the Claimant’s letter of
18 March 2011. There is no question of law arising out of this letter.
It is a matter of administration insofar as it deals with a decision to put the
matter on file. That is a question relating to discretion.
27.
So, under rule 3(7) in my opinion, neither of these two in time appeals
has any prospect of success. Ms Paw has indicated, in communications with
the EAT yesterday that if decisions went against today she would wish to appeal
and seek a review. In respect of the two cases that I have sifted out, the
Claimant has access is to a hearing under rule 3(10) and I would propose,
unless she says so now, to send this matter to join the other 3(10) appeals
which are being heard in January 2012.
Appeal
28.
I heard an application for a review. As Miss Paw said yesterday to
a case manager, she will request a review if the case goes against her. She
has put no grounds forward. There are no grounds for review. Applications for
review are treated very sparingly in this court. This is a very simple case and
therefore I refuse the application.
29.
An application has been made for permission to appeal against the
decision I have made in respect of both the adjournment and of the out of time
complaints. She gives no grounds for it. I am understanding about that. I
just assume that everything I have said is unacceptable to her apart, of
course, from the parts of the case where I found in her favour. There is no
basis upon which the Court of Appeal should hear this case. There is no
compelling reason, nor is there any reasonable prospect of success. The Court
of Appeal has so recently dealt with out of time appeals (see above) that there
is no prospect of it hearing this one.
