United Kingdom Employment Appeal Tribunal

 Appeal Nos. UKEATPA/0824/10/CEA

UKEATPA/0879/10/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 11 March 2011

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MRS P HANCOCKS APPELLANT

CAMBIAN EDUCATION SERVICES LTD RESPONDENT

PARDEEP RATHOUR SINGH-RATHOUR AND

MIRWALA (NIRMALA) RANI RATHOUR APPELLANTS

(1) MRS TAYLOR

(2) PARBAHTI CORPORATION LTD

(3) MR MOHEEN HUSSAIN

(4) MR MAHFOOZ HUSSAIN RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

APPEARANCES

UKEATPA/0824/10/CEA

UKEAT/0879/10/SM

SUMMARY

PRACTICE AND PROCEDURE – Time for appealing

Time for appealing two out of time appeals was enlarged.

In the first, the Claimant did not know there was a right of appeal and when she found out, on contacting the Employment Tribunal, reasonably relied on its assurance that the matter was being actioned.  The solicitors did not pass on The Judgment booklet or advice on appeal.

In the second, the Appellant’s (the Fourth Respondent) solicitors did not act speedily but the Appellant knew the deadline and did it himself.  He appealed a costs order only.  He did not include the ET3 of the First Respondent which had been dismissed from the Employment Tribunal proceedings.  That is not an error.  He did not include the ET3 of the two other Respondents (apart from himself).  That was an error but it was excused by his belief that since they were not affected by the order against him, he had no need to include them. This explanation was reasonable and was accepted.

HIS HONOUR JUDGE McMULLEN QC

1.            These are appeals from the decisions of the Registrar not to allow the registration of Notices of Appeals sought to be lodged by the respective Appellants.  I will refer to the parties by name, or as Claimant and Respondent.

2.            The appeals themselves relate to different decisions of Employment Tribunals.  The first Tribunal, Ms Hancock’s case, found against her on unfair dismissal, the second Tribunal found against the Respondent on costs, having first allowed the Claimant’s claim, and so the Respondent in that proceeding seeks to appeal.

3.            The Registrar decided in each case that the Notice of Appeal was out of time.  There is no dispute as to that.  The Registrar decided she would not exercise her discretion to allow extensions of time, in each as of comparatively short duration.  That is what this appeal is about.

4.            The relevant provisions of law and practice are set out in Muschett [2009] ICR 424.  Since then the Court of Appeal has decided Jurkowska v Hlmad Ltd [2008] ICR 841, and I have decided Wesmoreland v Renault [2008] UKEAT PA 1571, and the Court of Appeal has approved my approach set out in that case and others in its judgment in Harper & Anor v Hopkins [2010] EWCA Civ 1246.

5.            I have also observed on the misfortunes of Appellants coming late on the scene in my judgment in Miller v Lambeth [2010] UKEAT/0943/10/1712.  I there explain how frequently Appellants fail to observe the elementary practice, and also how their appeals are rescued by the care given by case managers here, if there are at least a few days before the deadline expires.

6.            In Kalill v North Cornwall [2010] EWCA 655, Sir David Keene in the Court of Appeal upheld Burton J, expressly approving the approaches of judges in the EAT to these late appeals.  The EAT has a generous deadline, 42 days, and the Court of Appeal will not interfere with decisions made by EAT judges, unless an error or law is shown, not simply a possible divergence on the evidence.  The EAT rules require a Notice of Appeal and all supporting documents prescribed by the Practice Direction to be lodged with 42 days.  The Practice Direction says what must be included and the 2005 Practice Statement makes clear that these are prescriptive provisions and there is no special treatment for litigants in person.  An appeal lies from the Registrar to a judge, in effect a fresh hearing.  In this case I have heard live evidence form Mr Hancocks, who effectively says everything on behalf of his wife, the Claimant, and from Mr Singh, who is the Fourth Respondent on the second appeal.

7.            The Registrar called for representations from both parties and decided to reject each Notice of Appeal.  She directed herself by reference to all the relevant legal provisions.

8.            A decision was promulgated by the Tribunal on 19 April 2010.  It was a reserved judgment of Employment Judge Cowling after a five-day hearing, and runs to some 25 pages.

9.            A Notice of Appeal, as properly constituted was lodged on 7 June 2010, six days late. Time expired on 1 June.

10.         The evidence of Mr Hancocks, which I accept, and upon which he has been cross-examined by Mr Robinson of counsel for the Respondent, is that his wife was previously represented by a firm of solicitors and one of their trainee solicitors represented the Claimant at the hearing.  The judgment was reserved.  It was sent by the solicitor by email to the Hancocks.  The Hancocks were unhappy about the result.  The solicitor did not send The Judgment booklet.  The solicitor did not, in his covering email say anything about an Appeal or a deadline.  Mr Hancocks has provided me with some email traffic, but not this letter [subsequently lodged].  On the basis of what Mr Hancocks tells me, he and his wife knew nothing about an appeal.  As far as they were concerned they thought that that was an end to it, although they were unhappy about the result.

11.         The circumstances of this family are reflected in the judgment.  Mrs Hancocks has severe difficulties arising out of a number of conditions, principally ME and their son also has a number of conditions, principally autism.  During the time immediately following the promulgation of the judgment there were very severe downturns in both Mrs Hancocks’ and their son’s conditions.  I accept from Mr Hancocks that that was a very fraught period for them.  Mr Hancocks, who is himself disabled, was having to cope with a lot of matters and this case was not at the forefront of his mind.  As he put it, the family were in a “real big mess”.

12.         He sent an email to the Employment Tribunal on 27 May 2010, the 38th day of the 42-day period.  He said he would like to appeal and he asked for advice, since he no longer had a solicitor.  That was acknowledged by the Tribunal saying it was receiving attention.  It was not, because a further email had to be written on 1 June chasing this up, to which the reply was, “This is now being actioned”.  This was the 42^nd day.  There was a phone call between Mr Hancocks and a clerk at the Tribunal on Friday 4 June.  In due course that day Mr Hancocks was referred to the EAT, where a case manager made sure that access was given to Mr Hancocks to the relevant documents for filing a Notice of Appeal.  Mr Hancocks scrambled, got all the material together and validly lodged the Notice of Appeal on Monday 7 June 2010.  This was the first time that he had seen the booklet called The Judgment.  He is critical of his solicitor for not calling him or advising him about rights of appeal and for not sending him a copy of booklet.

13.         In his application to the Registrar to extend time he did not point out the difficulties in the medical conditions of the three members of this family, which he now does.

14.         On the basis of that evidence Mr Hancocks contends that I should exercise my discretion.  Mr Robinson, in his written skeleton argument points out the authorities to which I have referred, the fact that 42 days is a generous period and that many people have medical difficulties which do not prevent them from the lodging of an appeal.  He also draws attention to the merits of this case and submits it has none.

15.         This is a rare case.  I have accepted in full Mr Hancocks’ evidence.  This family was in a dire state.  The shock of receiving this judgment was reported to me and I accept it.  I accept Mr Hancocks’ evidence that neither he nor his wife knew there was a right of appeal.  It must be unusual for a person in that position but it must be borne in mind also that they were represented by solicitors who had told them nothing about this, nor had they handed on The Judgment booklet.

16.         I accept that the whole of the period up until 27 May, when the first email was sent to the Employment Tribunal, was a reasonable period of time in which the Hancocks, who did not know they had a right of appeal, could wait.  But on 27 May they sent a letter to the Employment Tribunal.  That was still within time.  If it had been sent to the EAT, the experience of case managers here is that difficulties can be pointed out.  Since the Hancocks did not know they had a right of appeal to the EAT, it was not to be expected that they could write to the EAT.  It was only after being told by the ET about the EAT and about the websites and so on that they got in touch.

17.         The emails in response were properly relied on by the Hancocks.  These are holding emails, but they also say that the matter is receiving attention, which it was not.  That sort period of time, up until the expiry of the deadline is taken up with what the Hancocks reasonably believed to be action by the Employment Tribunal in trying to point them in the right direction.  It is not for a Claimant to seek advice from an Employment Tribunal as to what to do next, but in these special circumstances this was a fairly open question and all the Tribunal needed to do was to say, “You are in the wrong place, go to the EAT”.  On what I have heard from Mr Hancocks he would have done that, as exemplified by what he in fact did. Once he was told that the EAT was the proper place he actioned the matter.

18.         For the combination of both the ill health of the three members of this family, the lack of knowledge of the right of appeal and of course its deadline, and the reliance upon the assurance of the Employment Tribunal that it was actioning the matter, I will exercise the discretion and allow the appeal to be validly served.

19.         As to the merits, that will be relevant if the claim has no merits at all.  There is no point in breathing life into a case which has no merits.  I agree with Mr Robinson that the case has no merits, and yet I am exercising my discretion because I am going to invite the parties to consider the next stage in this under Rule 3.

20.         The gist of this case is an award in favour of the Claimant, Ms Taylor, for employment rights, which has been satisfied by the Fourth Respondent, who is Pardeep Rathour Singh-Rathour and Mirwala (Nirmala) Rani Rathour, of the sums ordered by the Employment Tribunal.  What is at issue is an award of costs against them. Mr Singh appears today to represent himself and his wife.  It was to pay 70 per cent of the costs on a detailed assessment.  An award of 10 per cent of the costs was made against the Second and Third Respondents.  No Notice of Appeal has been served by them.

21.         The First Respondent, Parbahti Corporation Limited was dismissed from the proceedings.  Ms Taylor has notified the Employment Appeal Tribunal that she will not attend today for the saving of costs and has to rely upon the submissions made by her solicitors.

22.         The chronology in this case is that it is accepted that the appeal was lodged three days out of time.  The appeal was actually lodged in time at the very end of the 42-day period, but it did not contain the responses, the ET3s, of the First, Second and Third Respondents.  Why not?  Mr Singh told me in evidence today what he had told the Registrar, which is that since he was appealing the costs order against him, he did not see it relevant to send in the ET3 of a Respondent who had already been dismissed from the proceedings, and of the two other Respondents, who would have very small awards made against them.  But when he was told by the case manager that these forms were necessary he responded immediately.  He spends a lot of time out of the country.  He was out of the country at this time.  He had dealt with the matter by email, albeit at the very last minute, but received by letter a note from the EAT saying that he was deficient by way of the three ET3s.  He makes a point that had he received this by email, which is his preferred mode of communication being out of the country a lot, he would have responded, scanned everything and done it immediately, which in fact he did when he came back from abroad and sent the material in.

23.         Why was there a long gap between the judgment and the first steps taken?  Mr Singh was represented by solicitors up to the date before the hearing where the solicitors said that he was not a solicitor advocate and would not represent the party at the hearing, and so Mr Singh did it himself.  It was a five-day hearing.

24.         He spoke to that same solicitor about appeal.  The solicitor advised him that it did not appear fair and he should appeal.  However, that solicitor did nothing, despite messages left by Mr Singh throughout this period.  Mr Singh had his eyes wide open.  He knew the 42-day deadline and that he was under pressure, and so in the week before it expired he went to another solicitor.  This solicitor assured him that he would help.  He agreed that the documentation was complicated but advised Mr Singh to appeal on only the costs point.  It was not a complicated matter.  The appeal was straightforward, downloading of papers relevant to this could be done from the EAT website, and that is what occurred.

25.         Mr Singh asked me to exercise discretion in his favour.  I am prepared to allow his appeal.  This too is an exceptional case.

26.         Mr Singh has put before me the circumstances of his activity in trying to get advice about the appeal and he is critical of the firm which represented him at stages before, but not at, the hearing, and in the way in which they responded once the judgment was published.

27.         A week before the deadline he had proper advice from solicitors and he could do it himself, and I am satisfied that he acted promptly on receiving that advice and putting in the appeal.  What he missed out was the ET3.  This is a venial fault.  The starting point is, as the practice statement makes clear, that all of the documents have to be put in.  I have myself dealt with cases where there are multiple respondents and I have not had to decide whether an ET3 is a requirement in a case where that respondent is itself not appealing.

28.         I have not heard oral argument on behalf of the Claimant in this case, but it seems to me that Mr Singh has a good point when he says that there is no need to put in an ET3 for a Respondent who has been dismissed from the proceedings.  As to the other two Respondents he should have put in the ET3s, these are relevant.  Costs orders were made against the Second, Third and Fourth Respondents and the Practice Direction makes clear that ET3s should be put in by all, but I accept the evidence as to why he did not.  He did not think it was necessary, and that is a truthful explanation and it has some cogency.  He was the one who was going to have to bear the burden of 70 per cent of the costs order; what relevance was it to him that the other two had been asked to provide 10 per cent each?  It certainly did not affect his liability.  So while he should have put the documents in, he has given me a good excuse.  He left it to the last minute but I accept his account of his relationships with the two firms of solicitors and accept the reasonableness of the steps which he took, and so this appeal is validly instituted.