United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T FAZAL (The Appellant in Person)
For the Respondent	MR E WILLIAMS (of Counsel) Instructed by: Berwin Leighton Paisner LLP Adelaide House London Bridge London EC4R 9HA


 


SUMMARY

PRACTICE AND PROCEDURE – Time for appealing

Relying on out of date information on the EAT website the Claimant lodged his appeal one day late. Discretion was exercised as the delay was not his fault. His two other appeals were not subject to this error and were correctly found to be out of time and there was no exceptional reason to extend it.


 


HIS HONOUR JUDGE McMULLEN QC

Introduction

1. The three appeals relate to three discrete decisions, the first is of Employment Judge Spencer sitting at London South sent to the parties on 1 June 2011 which is known as the time limits PHR. The second is against the decision of Employment Judge Spencer again, this time sent on 13 June 2011, the disability PHR and the third is against a Judgment of a three person Employment Tribunal, Judge Emerton presiding sent with Reasons on 24 October 2011, the Substantive Hearing. That was to do with unfair dismissal and race discrimination where the claims were dismissed. I will refer to the parties as the Claimant and the Respondent.

The law

2. The way in which the proceedings have developed betrays a number of errors, both in the ET and in the EAT. The Registrar gave reasons for refusing to exercise her discretion and also defined the relevant appeals which were respectively 180, 168 and 35 days out of time. The time limit, it will be recalled, is 42 days. What the Registrar said is this:

"The appellant appeals a judgment on a PHR promulgated on the 1^st June 2011. The time limit for appeal expired on the 12^th July 2011. He is 180 days out of time. The appellant also appeals a judgment on a pre hearing review that he was not disabled within the meaning of the DDA 1995 promulgated on the 9^th June 2011. He is 168 days out of time. The time limit expired on the 25^th July 2011. He was represented by counsel on both occasions yet he did not apply for the written reasons for that decision within the time limit. He states that he was advised by counsel that he had no right of appeal until after the outcome of the PHR promulgated on the 9^th June 2011 but does not explain why he did not appeal thereafter. He had plenty of time. He would have been clearly informed that his disability claim was proceeding no further. It is clear that the appellant received a copy of those judgments because he makes much of his argument that his request for written reasons was wrongly denied. He also appeals a judgment promulgated on the 22^nd July 2011 with written reasons promulgated on the 24^th October 2011. The time to appeal expired on the 5^th December 2011. He is 35 days out of time. All appeals were received on the 9^th January 2012. I take no point on the missing written reasons and deem all received on the 9^th January 2012.

He states that the written reasons (24/10/11) were sent to his old address which he vacated on 25^th August 2011. By Rule 61(2)(a) of the Rules of Employment Tribunal 2004 a document is deemed served on the day on which it would be delivered in the ordinary course of post to the address specified in the claim or response (Rule 61(4)(h)(i)). The appellant did not inform the employment tribunal of his new address until 9.13 pm on the 24^th October 2011 and by that time the written reasons had been sent. The appellant knew when he moved that he was expecting the written reasons for the Judgment promulgated on the 22^nd July 2011. He could have organised for his post to be forwarded, even if he had to collect it at a post office. He could have contacted the employment tribunal immediately after his eviction and made arrangements to receive notification by email. He could have arranged with his employers to make periodic visits to the property to check for his mail. Even when he notified the employment tribunal of his change of address, he took no steps to ascertain whether the written reasons had been sent though he had not been at his previous address for 2 months.

Many appellants act for themselves in this court with fewer advantages than this highly educated appellant yet they manage to observe time limits. Although the appellant claims to be disabled, those claims have been dismissed by the employment tribunal. He has suffered serious heart attacks but that appears to be no explanation for a disregarded time limit. No evidence has been produced as to why the appellant's disability should impair his ability to observe time limits. Although the appellant complains that he was given the wrong advice by his pro bono counsel, each judgment would have had a copy of the judgment letter (template attached) informing him of the Judgment booklet, the 42 day appeal limit and containing the address of a link to the EAT web pages. Merely putting "appeal from the employment tribunal" into the GOOGLE search engine will bring up links to the EAT web pages with their comprehensive advice as the first result. The appellant is well educated and had time available to research.

The appellant knew the decision was adverse and could hardly fail to appreciate its significance. However he delayed."

3. The Registrar directed herself in accordance with the relevant authorities which are UAE v Abdelghafar [1995] ICR 65, since then there has been a decision of the Court of Appeal Jurkowska [2008] EWCA Civ 231. Since then I have set out the problems facing the EAT by so many appellants leaving it to the very last minute and something going wrong; see my judgment in Miller approved by the Court of Appeal both as to the law and the practice. The principles are contained in the judgment of the Court of Appeal in O'Cathail and Zinda v Barn Elms [2011] EWCA Civ 690.

The facts

4. The chronology of the decisions includes an intervention in the Claimant's life in that on 1 August 2011 he received notice of eviction from the tied accommodation he had of the Respondent to take effect on 25 August. He knew from that time that he would not be able to receive papers from the ET. He was in touch with the ET as to the reasons for the substantive judgment which he had sought and which were not forthcoming. I heard oral evidence from him upon which he was cross-examined by Mr Williams. He also called his son who gave evidence as to what happened in the dying days of whatever period was vouchsafed to him.
5. I read the medical material which the Claimant had put before me indicating a serious history of surgical intervention and the effects on his cognitive responses. I also read in contradistinction to that his repeated assertions that he does not rely on his condition as an excuse for failing to follow the rules of the ET and the EAT. As he points out, he has run a £7 million business and is about to go back into it. And so I put some distance between what he says his condition is but I have seen medical material and I am prepared to accept that he has some cognitive difficulty in reaching decisions and writing decisions quickly.
6. The Claimant applied for written reasons and for a review of the time limit PHR on 24 June 2011. The Judge refused this. There was an administrative error which the Judge herself found and credited the Claimant with making such an application and eventually on 10 November 2011 she said so in a letter. On 9 November 2011 in a Judgment she refused to provide reasons for granting a review.
7. The Judge was plainly right as to a request made for reasons of the time limits PHR judgment because it was more than 14 days after the judgment had been given. So the appeal lodged on 9 January 2012 in respect of that is bound to fail. There was no life to be breathed into it. Adding time to enable a decision on review to be made does not stop the clock running in respect of that. The same goes for the application for reasons.
8. As to the disability PHR, the Judge continues to misunderstand that there was an outstanding application in time for reasons. She has refused an application for a review of that decision and there is no appeal against that in substantive terms but I note a reference is made to it in the Notice of Appeal which was lodged. It is fair to say that the Claimant has all along been complaining about the failure to provide reasons in respect of disability PHR.
9. The circumstances that attended upon the Claimant shortly after he was given the eviction notice were that on 25 August his whole family, five of them, decamped into a cargo van where they lived. No steps were taken by the Claimant, and I hold him to be at fault for this, in failing either to go to the old premises, or to ask his former employer to forward the material or to cause a redirection to be made from the Post Office.
10. On 21 October 2011 the Claimant signed a lease for the new premises. I hold from his evidence he could on that day have notified the EAT of his new address. This day was important, it being a Friday, because the following Monday the Tribunal sent the written Reasons to the only address which it had which was the old address from which he had by now been evicted. He knew from the Tribunal that he had to keep in touch with them and he told me that he had, but he did not tell them that he was to receive mail at the new address on 21 October. He did that at 9.13 pm on the 24^th, in other words after the Reasons had been sent to him.
11. The Tribunal made no effort to re-send the material to him. On 25 November he had cause to go back to the old premises, where he found the Reasons for the substantive judgment, the letter of 10 November 2011 and the refusal to review of 9 November 2011. He took no steps to follow any of those dates as being relevant to his appeal. He appears to have been aware of the time limit.
12. On 6 January 2012 he told me he was in comfortable accommodation with full access to the internet which he uses. He attended upon the old EAT building at Audit House and there found it empty because the EAT had moved in the week commencing 5 December 2011, and was unable to find out on that date where the EAT had moved to. In fact we moved to Fleetbank House in Salisbury Square, about 300 metres away. He went home and directed his son, Eddie Sharm, to find the EAT on Monday and deliver the papers. Eddie Sharm came on Monday 9 January, spoke to someone occupying the old building at Audit House, who instantly directed him to Fleetbank House where he lodged the papers on 9 January.

Conclusions

13. I will now deal with the proper sequence of appeals. In respect of the time limits PHR, there is no basis for extending the time. The only reason the Claimant gave me was a criticism of his counsel Ms Price for he was represented at the time limits PHR. He at one stage made criticisms of her, telling the Registrar in writing that she advised him that he could not appeal a decision at a PHR. Mr Williams submits that that is most unlikely. I agree. In any event, by the time of the second PHR the Employment Tribunal sent him a letter which makes it clear what the deadlines are. He told me that that letter had not accompanied the Judgment on the PHR. I find that difficult to accept.
14. I judge Mr Fazal, from what I see of him, from the way in which questions were to put to him about his evidence and I form my own view. I did not find him a satisfactory witness. I notice that the same conclusion was drawn by the three person Tribunal which dismissed his substantive hearing, holding that at times he was unclear, inconsistent, implausible, disingenuous and illogical. I form this conclusion as to the advice he says he was given by counsel following the giving of oral reasons at the time limit PHR. There is no basis to extend time; the judgment should have been appealed by 42 days from that.
15. I turn then to the disability PHR. There was a timeous application for a review. The review was refused for reasons which were given. The review does not hold up an appeal. There was, however, an application for reasons which has not been dealt with by the Judge specifically in relation to the disability appeal. The Employment Tribunal committed an error in relation to this because it sent both the 10 November letter and the 9 November Reasons to the old address, notwithstanding that on 24 October it had been told of the new address. In fairness to the Claimant, I do not begin to count time against him until he received this material when he went to the premises on 25 November.
16. On that basis the time for appealing against the judgment ended on 6 January 2012. The Claimant has only himself to blame for leaving it so late, but here arises another error; this time of the EAT.
17. The address in some places on the EAT website was changed in accordance with directions given from 5 December 2011. But what I regard as critical is a document called, "I want to appeal". This did not have the correct address put on it until 31 August 2012, despite my administrative direction in open court on 22 June 2012 in Lister UKEATPA/0044/12/SM.
18. Mr Fazal told me he read "I want to appeal" and it was on the basis of that that he came to the EAT to try and lodge his appeal. Notwithstanding that he has never mentioned this fact before, I accept that he came to the old EAT address on 6 January and was unable to lodge it. True it is he could have found out, as his son quickly did on the 9^th, but he took a step which I hold to be reasonable, in giving the material to his son and told him to find out the new address. Time ran out on 6 January. I will exercise discretion to extend it to 9 January to enable the appeal against the disability PHR to be raised. Since this was caused by an error of the EAT, the Registrar was wrong in principle not to have extended time.
19. As to the substantive judgment, the same approach does not apply. The Tribunal did not make an error in sending it to his old address. It was the address that was on the record at the time and so time begins to run from the date it was sent. In my judgment, the Claimant had ample time after 25 November when he first saw it, to lodge a Notice of Appeal and he did not. It was his fault that the Tribunal had the wrong address for him in respect of that judgment and he should have taken any of the steps counsel pointed out to him in his cross-examination in order to ensure that he was kept alert of any developments. I find he knew perfectly well that a Judgment was to be forthcoming and he had to keep in touch. He did not and so the truncating of the time for appeal was entirely his fault. He has given an explanation for the first four weeks but not an excuse and as to the succeeding two weeks, I hold that he had time to put in an appeal and he failed to do so in time. This is not an exceptional case.
20. I will allow the appeal against the Registrar's refusal to allow the appeal against the disability PHR to be registered and I will now direct the Judge to provide the Reasons which I hold were sought timeously for that Judgment. The matter can then go back to Mr Fazal who can do a new Notice of Appeal when he sees the Reasons, if so advised, and it goes without saying that that appeal would be within time.