United Kingdom Employment Appeal Tribunal

Appeal No. UKEATPA/1928/11/ZT

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 16 August 2012

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MR A JOHNSON APPELLANT

RUCK SSC LTD RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE – Time for appealing

The Claimant failed to include the Employment Tribunal judgment and reasons in his last minute Notice of Appeal and gave no explanation at a hearing for this failure. Discretionary extension was refused as this was not an exceptional case.

HIS HONOUR JUDGE McMULLEN QC

1.              This is an appeal from the decision of the Registrar given on 12 March 2011 to refuse the registration of a Notice of Appeal sought to be lodged by the Appellant.  I will refer to the parties as the Claimant and the Respondent.

Introduction

2.              The appeal itself is an appeal against a judgment of an Employment Tribunal sitting at Bristol over 3 days under the chairmanship of Employment Judge Roper, sent to the parties with reasons on 7 November 2011, and so the deadline for an appeal against that was 4pm on 19 December 2011.  The Employment Tribunal dismissed all of the substantial number of complaints made by the Claimant.  The Claimant appeals against that judgment which was given orally on the conclusion of the third day of the hearing, 2 November 2011.  He knew at once that the decision was wrong and would be appealing against it.

The legislation

3.              The Registrar decided the notice was out of time.  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.  The Practice Direction is clear, the rules are prescriptive and not one’s of encouragement.  The relevant provisions of law and practice are set out in my judgment in Muschett [2009] ICR 424 and since then the Court of Appeal decided Jurkowska v Hlmad [2008] ICR 841 and O’Cathail [2012] EWCA Civ 1004. 

4.              Of particular relevance to the facts of this case is my judgment in Westmoreland v Renault UK Ltd UKEATPA/1571/08 which is to do with, as will become apparent, a person who has convinced himself that he has by email sent all of the documents when he has in fact omitted some.  The problem of people who make mistakes in submitting documents for an appeal to the EAT is one upon which I have dilated at some length.  In my judgment in Miller v Lambeth Primary Care Trust UKEATPA/0938/10 I explained the difficulties both in terms of administration and judicial time caused by people who fail to follow the most elementary rules for the submission of documents to the EAT and that judgment was upheld: see [2011] EWCA Civ 722. 

5.              The simple point is that people leave to the end of the very generous 42 day period the presentation of a Notice of Appeal if something goes wrong.  If they leave just a little more time, the indulgent and sedulous officers of the EAT rescue them by telling them what they have omitted, so that they can right it.  But if this is all done at one minute to midnight, they have no hope, as will be apparent in this particular case. 

6.              Little needs to be added to what Rimer LJ said in Zinda v Barn Hill [2011] EWCA Civ 690 at paragraph 45 upholding a judgment of mine and of Judge Clark’s. 

“There is no need for extensive reference to the reported authorities relating to extensions of time for filing notices of appeal in the appeal tribunal. The essence of the principles is, I consider, sufficiently summarised in paragraphs [3] to [7] of my judgment in Jurkowska v. Hlmad Limited [2008] EWCA Civ 231  (to which Judge McMullen referred). That shows that the time limits are expected to be observed and that the rules are the same for those acting in person as for those professionally represented. The rules, said Mummery J (as he then was) in United Arab Emirates v. Abdelghafar [1995] IRLR 243, paragraph [27], 'will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down by the Rules.' Acceptable excuses do not include ignorance of the time limits; or oversights of the passing of the time limit, for example by a solicitor under pressure of work. Whilst the merits of the appeal may be relevant, they are 'usually of little weight [since it] is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal' (Abdelghafar, paragraph [29]).”

The Registrar’s directions

7.              The Registrar directed herself in accordance with the relevant authorities and came to this conclusion.  She said the following:

“The notice of appeal has been lodged 3 days out of time and by virtue of Rule 3 of the Employment Appeal Tribunal Rules 1993 as amended in 2004 it is the responsibility of the Appellant to ensure that an appeal is submitted to the Employment Appeal Tribunal within 42 days of the date the written reasons for the judgment or an order of a tribunal were sent to the parties.

[…]

In order to institute an appeal from a judgment of an employment tribunal the Notice of Appeal shall be accompanied by a copy of any claim and response in the proceedings before the employment tribunal (ET1 and ET3) or an explanation as to why none is included and a copy of the written record of the judgment and the written reasons for the judgment or an explanation as to why none is included.  If it is not so accompanied, an appeal is not properly instituted and the submission of an unaccompanied Notice of Appeal cannot be used as a device to claim the appeal was filed in time.  Note the EAT Practice Direction Paragraph 3.5.  The original Notice of Appeal, received in time, was defective because no copy of the ET1, ET3, Judgment and Written Reasons was included and there was no explanation for this so the appeal was therefore not properly instituted until after the time limit expired Kanapathiar v London Borough of Harrow [2003] IRLR 571.

[…]

The appellant appeals a decision promulgated on the 7^th November 2011.  The time limit expired on the 19^th December 2011.  The appellant filed his appeal on the 16^th December 2011 but failed to include the documents as outlined above.  He asserted in his appeal that he was unable to supply one out of seven ET1 documents and none of the seven ET3 documents because they have become ‘corrupted’ on his computer.  This is a statement of fact, not a reason as to why he did not supply them.  He is silent as to the judgment and written reasons.  This omission is not mere formality and is an important aspect of the case.  Note the case of Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180.

The appellant claims that the delay in submitting his appeal was caused by a virus that penetrated his computers defences.  This destroyed the ET3 documents.  He had failed to retain hard copies of any of the bundle of used to prosecute his claim stating that this was part of his ‘green exercise’.  Why this should result in existing prepared bundles being destroyed when energy had already been expended in creating them is unclear.  I do not see the rationale for this and it is most imprudent conduct.

[…]

He knew on the 4^th December that he had a problem with his documents.  A prudent appellant would immediately have obtained hard copies from the employment tribunal.  He chose to resolve his computer problems first with the inevitable delay that this must being.  He makes no specific mention of the judgment and written reasons and I do not know whether to infer that he destroyed the hard copy the employment tribunal sent to him.  He sent the judgment and written reasons by email on the 22^nd December 2011.  Even if I accepted that the appeal was properly instituted on that day, he is 3 days out of time.”

The facts

8.              In accordance with my judgment in Muschett, I have heard live evidence and form my own view on the facts following both the written material submitted by the Claimant and his evidence before me, upon which he has been cross-examined very properly by Mr James Dawson.  The Claimant told me that he knew he was to appeal and allowed himself four weeks in order to prepare the appeal; that was not a finite self-direction, it was in my view very prudent, so that he could take time to consider what to write, and by 4 December, that is 4 weeks into the 6 week period, he had as he said in his written submission to the Registrar, prepared the appeal. 

9.              He had put everything together to be sent to the EAT.  I take that to be collecting the materials, working out what his approach would be, the drafting and as he put forward, the considerable amount of time, research and hard work which he put into it over the 4 weeks he had allowed himself.  Something went wrong.  For 2 days he had access to the internet but there appeared to be a fault with his hard drive and it was not able to cope with the virus.  He bought some additional anti-virus software, which turned out to be fraudulent.  In his written submission to me this morning, he said that he contacted McAfee support service on 9 December 2011.  He did not adhere to this date when he gave his evidence in cross-examination and told me that it was 11 December, when he contacted McAfee IT specialists.  This is an organisation which supplies anti-virus services to which he subscribed, and yet he did not apply immediately to them. 

10.          Help was given and on 12 December he was up and ready again and yet he did not submit the forms to the EAT until 15 December 2011.  On 16 December he received an automated response.  The deadline for the appeal was 19 December, a Monday.  On 20 December the EAT advised the Claimant that his appeal was defective saying what was missing.  In particular, some of the 7 pairs of ET1s and ET3s, the judgment and the reasons.  Now the judgment is a document of 14 pages which includes the reasons.  Since the reasons and the judgment were delivered extempore they are printed in the same form and it is headed ‘Judgment of the Employment Tribunal’ in the customary way.  The point is, there is no separate judgment in a separate document as sometimes occurs when reasons are not sought on the date.  There is therefore quite properly a single judgment which includes the reasons.  The Claimant unarguably submitted this on 22 December 2011 and at this stage, the Registrar determined that the matter was in time. 

11.          The Claimant told me that he spent 2 days browsing the net after the 4 December 2011 threw up the problem to him.  He did not answer questions put by counsel as to when he was up and running again on the internet, and he did not contact the Respondent or the Employment Tribunal when it became apparent that some of the documents which he had put into electronic format had not been saved during the process of attacking the virus.  He had been told by McAfee that things were up and running and he gave what he describes simply as a glance at the documents without checking that they were all defective at the time that McAfee put him on the right lines, that is 12 December 2011.  He told me he had to come to London to see his brother but he did not think of making a telephone call to anyone to see if the material had got through and to try and make good such defects as there might be, exposed by the failure of the system to send forth his materials. 

12.          He was well aware from the Registrar’s decision that what was missing were the pleadings in the case, or at least some of them, and also the judgment and reasons, for the Registrar, as I have cited above, explicitly made clear that he was silent as to these.  He maintained before me that he had indeed sent the judgment and the reasons.

Discussion

13.          I will deal with the Claimant’s arguments and the Respondent’s submissions at the same time as I give my conclusions. 

14.          The first issue to decide is whether the material was sent in time: it was not.  On 22 December there is the first record of the judgment and reasons being sent.  Making allowances for the absence of certain of the pleadings and accepting the Claimant’s explanation on his appeal form, it appears that all of the relevant documents and/or an explanation for their absence, were in place on 22 December 2011.  I have examined the court file and made it available to the Claimant but he did not wish to see it. It is plain that on 15 December 2011 the Claimant sent a number of documents which included the appeal, some of the pleadings and a note from McAfee explaining the problems of the virus.  These are entirely visible as attachments. 

15.          When the Claimant was informed that there was no judgment and reasons he sent another email on 22 December saying “Please find attached copies of my original submission of 15 December 2011”.  Attached to this are not the attachments nor apparently is it a copy of the previous email.  The important thing is that whereas the first submission to the EAT contained the pleadings, the form of appeal and the McAfee document, the second contained none of those but did contain in four separate files JPEG numbers corresponding to the word ‘Judgment’. I find that the Claimant simply did not include in his first submission the documents which he included in his second. 

16.          This was a simple error by the Claimant which he even now does not acknowledge.  He is in exactly the same position as Mr Westmoreland’s case, who made the same error.  He thought sending a number of documents included documents which were not sent, but having traced the documents into the EAT inbox they did not appear.  I accept Mr Dawson’s submission that the Claimant had his eyes wide open when coming to my hearing today to show me how he had himself submitted the judgment on 15 or 16 December, for example, by a copy of his own outbox.  He has not done so and I consider that he simply has no explanation and is unwilling to face up to his own error in failing to send the relevant documents.  As a matter of fact, the appeal is out of time.

17.          The question for me is should I extend it in an exceptional circumstance?  There is no exceptional circumstance here, this is simple error.  It occurred because the Claimant left to the very latest moment the submission of the appeal, a problem which I opened this judgment with.  He did not send the material until 15 or 16 December, which was just 3 or 4 days before, with the weekend intervening.  Problems do occur; they occurred in this case.  I have no doubt he acted promptly as soon as he was told of the omission of the judgment and reasons and counting backwards if he had sent it, for example, on 12 December when McAfee told him his system was fine, if he had prioritised his time so as to check rather than simply glance at the document and submitted its form at that time, the officers of the EAT would, as they did in this case, have pointed out to him what was missing and he would have been able to rectify it. 

18.          I accept that he had difficulties in connection with the virus but this was after all, short lived from sometime around 4 to 11 December.  I cannot criticise him for waiting for 4 weeks in order to work hard and produce a Notice of Appeal under his own steam, and so I accept that he worked hard to produce that. But since he tells the Registrar and me that everything was ready to go on 4 December, there was little more he needed to do and yet he seemed still to have been seeking to finalise matters on 15 December.  In my judgment, the simple error in failing to notice that he had not sent the judgment and reasons is the explanation for this and there is no reason why time should be enlarged for him. 

19.          I have not been addressed on the merits of the case in any way and so I say nothing about them.  The application is dismissed.  I would like to thank Mr Johnson and Mr Dawson for their submissions.