United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2011/0758_11_1710.html
Cite as: [2011] UKEAT 758_11_1710, [2011] UKEAT 0758_11_1710

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Appeal No. UKEATPA/0758/11/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 October 2011

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

(1) MRS D M PARKINSON

(2) MRS S A HEYES APPELLANTS

LANCASHIRE MIND LTD RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

APPEARANCES

For the Appellants

Written Representations

For the Respondent

MR RICHARD REES

(Representative)

Peninsula Business Services Ltd

The Peninsula

2 Cheetham Hill Road

Manchester

M4 4FB

SUMMARY

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

A Notice of Appeal lodged on day 40 without the two ET3s and missing a page of the Reasons and not properly lodged until a week late was out of time and discretion would not be exercised to extend time.

HIS HONOUR JUDGE McMULLEN QC

1. This is an appeal from the decision of the Registrar not to allow the registration of Notices of Appeal sought to be lodged by the two Appellants. I will refer to the parties as the Claimants and the Respondent, as at the Employment Tribunal.

Introduction

2. The appeal itself is an appeal by the Claimants in those proceedings, against a Judgment of an Employment Tribunal sitting at Manchester under the chairmanship of Employment Judge Slater, sent with Reasons extending to some 15 pages on 15 April 2011. The Claimants had contended that they were unfairly dismissed. These claims were dismissed.

3. By consent, a claim by Mrs Parkinson for breach of contract was allowed and the sum of £70 was awarded as damages. The central dispute concerned allegations of misconduct in the recording of absence, as to which the Employment Tribunal found that the Respondent acted reasonably, having carried out a fair procedure in dismissing them and such dismissal was within the range of reasonable responses.

4. The Claimants sought to appeal against that. The Registrar decided the Notices of Appeal were out of time and time should not be extended.

The legislation

5. The relevant provisions of law and practice are set out in my Judgment of Muschett v London Borough of Hounslow and Others [2009] ICR 424 ICR 424. Since then the Court of Appeal decided Jurkowska v HLMAD [2008] ICR 840. See also my Judgment in Bost Logistics v Gumbley and Ors UKEATPA/0013/08, Westmoreland v Renault UK Limited UKEATPA/1571/08 and Harper v Hopkins [2010] EWCA Civ 1246, where the Court of Appeal expressly approved my approach to the practice and the law in these kinds of appeals). The EAT Rules require a Notice of Appeal and all supporting documents as prescribed in the practice direction to be lodged within 42 days. These provisions are prescriptive. An appeal lies from a decision of the Registrar not to accept a Notice of Appeal to a Judge. I hear live evidence if it is brought before me. I make up my own mind on the facts.

The Registrar’s directions

6. The Registrar directed herself in accordance with the correct authorities and came to a conclusion that the Notice of Appeal should not be accepted. What she said was this:

“... The original Notice of Appeal, received in time, was defective because no copy of the ET3 documents in respect of claims 2403994/10 and 2404018/10 were included and the written reasons were incomplete as a page was missing and there was no explanation for this so the appeal was therefore not properly instituted until after the time limit expired ...

The appellants appeal a decision promulgated on the 15th April 2011. The time limit expired on the 27th May 2011. The appellants filed an appeal on the 25th May 2011 but failed to include a copy of the documents as outlined above. The court wrote to them on the 26th May 2011 notifying them of this and advising that the appeal was not properly instituted. This omission is not merely formality and is an important aspect of the case. ...

The appellants claim that there was a failure of some emails that they sent to the EAT. They lodged the ET3 forms on the 3rd June although both were incomplete and so the appeal was not properly instituted until later.

... The appellants act for themselves but so do many litigants do so in this court and they manage to file all the necessary documents in good time. The appeal arrived without the Judgment and written reasons and the ET1 or ET3 documents. The appellants claim that they did send the ET3s as their documents followed piecemeal over the next two days but that the emails containing these documents were not received. The ET3 documents were received without any difficulty by email on the 3rd June. Therefore the implication is that they were not sent before the 3rd June. The plain fact is that this mistake could have been readily corrected if the appellant had taken the advice in the Judgment booklet and obtained all the necessary documents and filed their appeal in good time. They are not out of time because they failed to provide the ET3 documents but because they left it so late to file their appeal and that they had little time in which to correct the omissions.”

The facts

7. I have no reason to doubt the expression of the facts set out by the Registrar. The Claimants, who represented themselves at the hearing, have presented a skeleton argument, at least Mrs Heyes has, which deals very substantially with the decision to reject their claims of unfair dismissal and very little in respect of the appeal before me, against the Registrar’s decision.

8. The facts of the case are set out by the Registrar. No new material has been put before me to gainsay what she has found, and I have no reason to doubt that the Claimants understood the position which is available to any person receiving a Judgment of the Employment Tribunal.

9. The Respondent contends that the Registrar was entirely right and that I should follow her findings. Further the Respondent, who is represented before me today by Mr Richard Rees a consultant, contends that there is no merit in the case.

Conclusions

10. Without the Claimants taking the opportunity which is available (see Muschett) to put evidence before me, there is nothing more before me than Registrar. The Claimants knew what material was to be adduced; they failed to produce it, the rules are firm in the EAT, the time limits for complying with the matters are strict. As I have said on many occasions, a rescue operation is launched by the grace of case managers here, where a Notice of Appeal is submitted a few days before the deadline in case the missing documents can be provided. Here, the time between the documents being served and the deadline was too short.

11. The Claimants have only themselves to blame and I find no reason, myself, to dispute the findings of fact as to chronology nor to exercise discretion in their favour.

12. In response to Mr Rees’s argument about the merits of the case, this is a matter which is open to me following the Judgment of Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Company Ltd [1999] EWCA Civ 1479. Generally the assumption is the case does have merit but, in answer to Mr Rees, I do accept that the Claimants have misunderstood the purpose of an appeal and I consider this very thorough Judgment of the Employment Tribunal raises no issue of law. It has no merit whatsoever. For that reason too, I would dismiss the appeal. In any event, in the light of my opinion above, if this case got through the Registrar’s appeal and it came to me on the sift, I would form the above opinion under rule 3, and dismiss the appeal.

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