United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lungu (t/a Len Fowler Trophies) v Shell (Practice and Procedure: Time for appealing) [2015] UKEAT 1178_14_0210 (02 October 2015)
URL: http://www.bailii.org/uk/cases/UKEAT/2015/1178_14_0210.html
Cite as: [2015] UKEAT 1178_14_0210, [2015] UKEAT 1178_14_210
[New search] [Printable RTF version] [Help]
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
MR P LUNGU t/a LEN FOWLER TROPHIES APPELLANT
MR J R SHELL (DECEASED) RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEAL AGAINST REGISTRAR’S ORDER
APPEARANCES
|
(The Appellant in Person) |
|
|
(Representative)
|
SUMMARY
PRACTICE AND PROCEDURE - Time for appealing
Appeal from Registrar’s Order refusing extension of time for appeal.
The Appellant suffering from a disability (he is registered blind) and contending that the time for his appeal should only have run from the date he received the Braille version of the ET’s Reasons.
Allowing that reasonable adjustments should be made to ameliorate any disadvantage suffered by the Respondent as a result of his disability, his evidence was that his computer software meant he was able to “read” messages and ‘Word’ attachments emailed to him and he was unable to explain why he would not have been able to read the ‘Word’ version of the ET’s Reasons apparently emailed to him on 22 July 2014. The Appellant further accepted that he was aware of the ET’s Reasons given orally at the hearing and had been able to make an application for reconsideration within time (taking time to have run from the date the Reasons were sent to the parties, 22 July 2014). Furthermore, in evidence to the ET he had conceded that his son assisted him by reading documentation to him. In those circumstances, it was not apparent that the Respondent had suffered any disadvantage upon receiving the ‘Word’ version of the ET’s Reasons on 22 July 2014 and yet he did not lodge his Notice of Appeal with the EAT until 15 January 2015.
Even if that assessment was incorrect, the Appellant received the Braille version of the ET’s Reasons on 7 November 2014 but still failed to lodge his Notice of Appeal until 15 January 2015 (outside the further 42 day period he contended he was entitled to after receiving the Braille version of the Reasons). That the Appellant then spent some time seeking advice did not provide a good explanation. He had been able to send the supporting documentation to the ET on 15 December 2014 and was unable to explain why he did not then submit his Notice of Appeal for a further month.
Applying United Arab Emirates v Abdelghafar [1995] ICR 65 EAT, the Appellant had been unable to show an explanation (let alone a good explanation) for his default and there was no basis for allowing an extension of time for the appeal in this case.
HER HONOUR JUDGE EADY QC
Introduction
1. I refer to the parties as the Claimant and the Respondent, as below. This is the Respondent’s appeal against the Registrar’s order, seal dated 13 July 2015, refusing his application for an extension of time in which to lodge an appeal against a Judgment of the London (Central) Employment Tribunal (Employment Judge Isaacson, sitting alone on 10 June 2014; “the ET”), which allowed various claims by the Claimant and ordered the Respondent to pay the sum of £5,503 to the Claimant’s estate.
The History
2. The ET announced its Judgment and reasoning orally at the end of the hearing on 10 June 2014. The Respondent says he then indicated that he disagreed with the decision and wished to appeal but due to his disability (he is registered blind) would need important documents, such as the ET Judgment, to be Braille-printed so he might read them.
3. The ET emailed out a copy of its Written Reasons to the parties on 22 July 2014. On its face, that was the date from which time began to run for the purposes of any appeal or application for reconsideration, something made clear in the standard covering letter from an ET. The Respondent received the ET’s email on 23 July 2014.
4. In fact, as is clear from my bundle, two emails were sent out from the ET to the Respondent on 22 July 2014. The first was sent at 15:00 hours and has a Word attachment stated to be the ET’s Reasons. There was then a further email at 15:02, with a PDF attachment, stating, “Please find attached written reasons in pdf format”.
5. As stated, the Respondent is registered blind. He has software on his computer, however, that enables him to “read” text and messages: the software “reads” the message or documentation and then, in voiced form, reads those out to the Respondent. In giving evidence on oath before me, the Respondent has told me that the software is unable to read scanned attachments such as PDFs but can read ‘Word’ attachments unless they contain complicating features such as columns (not the case in relation to the ET’s Reasons). The Respondent accepts that he received the emails from the ET. He is unable to say whether he opened the Word attachment to the first. In any event, he says he telephoned the ET office and spoke to the caseworker, Mr Priyam Sukul, advising him of his disability and asking for Braille-printed documents, which he was told would be sent out in due course. He says he was further advised by Mr Sukul that the time limit for an appeal “will start in the day when I will receive the Braille-printed documents”.
6. It is unclear when the Braille-printed versions of the documents were actually posted out by the ET, but the Respondent has said he received them on 7 November 2014. The time limit for an appeal had by then expired - it did so on 2 September 2014 - and the Respondent had made no attempt to communicate with the EAT. He had, however, submitted a fairly detailed application for reconsideration to the ET. That was done under cover of a letter dated 1 August 2014 (within the relevant time limit). In giving evidence, the Respondent has accepted that he was able to send that application for a reconsideration to the ET, in time, making reference to the ET’s Reasons for its Judgment. He says he was able to do that from what he remembered of the Judgment and the Reasons given orally by the ET at the end of the hearing. He has been unable to explain why he could not similarly have submitted an appeal on that basis.
7. By its further Judgment, sent to the parties on 24 August 2014, the ET refused the application for reconsideration. No complaint has been made about that.
8. Meanwhile, after receiving the Braille version of the ET’s Judgment and Reasons on 7 November 2014, the Respondent says he then started looking for legal and professional help from “human rights organizations and other ones like RNIB and from some solicitors”. On 15 December 2014, he sent an email to the EAT attaching the documentation needed to support an appeal (albeit his covering letter was actually dated 8 December 2014). At that point, however, he submitted no Notice of Appeal. His Notice of Appeal was forwarded separately by email received on 15 January 2015, albeit under cover of a letter dated 27 December 2014. The absence of the Notice of Appeal had apparently been drawn to the Respondent’s Notice by a member of the EAT staff by telephone, presumably at some point before 27 December 2014.
9. For the Claimant, Mr Wolstenholme has observed that in December 2014 enforcement proceedings were pursued against the Respondent in respect of the ET’s award, which he had failed to pay. He suggests this may have been the real motivation for the appeal documentation being lodged that month. He also notes that, when giving evidence to the ET, the Respondent had explained that he was assisted in reading documents by his son; he suggests that it might reasonably be inferred that similar assistance might have been provided in respect of the documents received from the ET. He further observes (as did the Registrar) that the Respondent had been able to make an application for reconsideration in good time.
The Approach
10. The 42-day time limit for presenting an appeal against a Judgment of the ET is both generous and clear. It is stipulated in the booklet expressly referenced in the covering letter sent out to the parties with an ET’s Judgment. It is also made plain in the covering letter itself and is readily discernible from any internet search or by ‘phoning the EAT office. Notwithstanding a generous period of six weeks for lodging an appeal to the EAT, there is a discretion to extend time, as provided by Rule 37 of the Employment Appeal Tribunal Rules 1993, as amended. The approach that will be adopted in deciding whether to exercise that discretion is well rehearsed in the case law, as summarised at paragraph 5.7 of the EAT’s Practice Direction 2013, which signposts the guidance laid down by Mummery J (as he then was) in United Arab Emirates v Abdelghafar [1995] ICR 65 (subsequently approved, e.g., by the Court of Appeal in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111).
11. As set out in Abdelghafar, the relevant questions on an application for an extension of time in this context are as follows: (1) what is the explanation for the default; (2) does that amount to a good explanation; and (3) are there circumstances that justify the EAT taking the exceptional step of granting an extension of time? An explanation in this regard may not be sufficient unless it explains why the Notice of Appeal was not lodged throughout the entirety of the period (see Muschett v London Borough of Hounslow [2009] ICR 424 EAT). As was observed in Abdelghafar, “An extension of time is an indulgence requested from the court by a party in default”. Even where a party is unrepresented, the requirement to comply with the time limit is clear. There is no excuse, even in the case of an unrepresented party, for the ignorance of time limits, and the approach adopted by the EAT has been approved by the Court of Appeal in this regard (see for example per Sedley LJ in Jurkowska v Hlmad [2008] ICR 841 CA).
12. Moreover, it is clear that time runs from the date the ET’s decision is sent to the parties not from when it is received (see per Burton J in Sian v Abbey National plc [2004] ICR 55 EAT, approved by the Court of Appeal in Gdynia America Shipping Lines (London) Ltd v Chelminski [2004] ICR 1523). That would be so even if the covering letter from the ET had been incorrectly addressed (see Carrol v Mayor’s Office for Policing & Crime UKEATPA/ 0203/14). As to what has to be lodged, that is made clear by the EAT Rules and Practice Direction. A Notice of Appeal will not be validly lodged without the additional documentation required (see the EAT Practice Direction, paragraph 3.1), but conversely simply lodging the supporting documentation will not be sufficient without the Notice of Appeal.
The Respondent’s Case
13. In seeking to explain the default in this case the Respondent makes a number of points. He first complains that he did not receive the ET’s Judgment, Reasons and covering letter in a format that he was himself able to read (that is, in Braille). He observes:
“… I consider myself a free person, leaving [sic] in a free country, and like anyone else, I don’t like to be depending on other people. Also, I think that it is my right as [a] blind person to be able to read myself my letters (correspondence).” (see the Respondent’s Skeleton Argument)
14. That is a point the Respondent has emphasised in oral submissions before me. He has, however, also told me that his computer software is able to read emails and Word attachments and provide voiced versions for him, so he can hear them (albeit, it cannot read a scanned document such as PDF). The difficulty with that evidence is that it does not explain why the Respondent could not thus read the ET Reasons as continued in the Word attachment to the email of 22 July 2014. The Respondent has simply been unable to explain to me why he would not thus have been able to read that using his computer software designed for those purposes.
15. It is his case, however, that time could properly only begin to run once the Braille version of the Judgment and Reasons had been sent out to him. More specifically, he says he was advised by ET staff that time would not run until he actually received the Braille Judgment and Reasons. Further, he has told me that he did not then put in his appeal immediately after receiving the Braille-printed Judgment and Reasons as he then took the opportunity to seek advice from various sources. He is unable to explain to me why he did not then submit the Notice of Appeal within 42 days from receiving the Braille-printed Judgment and Reasons but only sent it subsequent to the other documentation on 15 January 2015. Although he was aware that the EAT has treated his appeal as having only been properly instituted on 15 January 2015, when he lodged the Notice of Appeal, the Respondent has not provided any explanation or evidence to assist in understanding why he delayed in sending that document in.
Discussion and Conclusions
16. The first question is whether the Respondent was in default in sending in his Notice of Appeal. I am satisfied that he was. Time ran from the date on which the ET’s Judgment and Written Reasons were sent to the parties; that is, 22 July 2014. The matters that the Respondent raises might go to the question of whether it is appropriate to extend time in this case, but that does not change that position: time started to run from that date.
17. I am also satisfied that - having had the point drawn to his attention by the Registrar’s reasoning - the Respondent was alive to the fact that his Notice of Appeal was taken to have been lodged on 15 January 2015. Notwithstanding the opportunity to put in any relevant documents at this Hearing, and to address me both in evidence and submission, the Respondent has put forward no case as to why I should take a different view. That is the date on which the Notice of Appeal was date-stamped as received by the EAT. That is the date when the Respondent submitted his Notice of Appeal and when the appeal was thus properly instituted.
18. There is therefore a default; the appeal was lodged out of time. The next question is whether the Registrar erred in declining to extend time in this case. This is a matter that I consider afresh on this appeal. Having heard evidence from the Respondent, should I exercise the discretion vested in me to extend time?
19. In considering that question, the first issue for me is a factual one: what is the explanation for the default?
20. The first explanation given by the Respondent is based on the ET’s failure to send out a Braille-printed version of the Judgment and Reasons. In giving evidence, however, the Respondent has told me that his computer software was able to read emails and Word documents and then provide voiced versions for him to hear them. From the documentation before me, it seems that the ET’s Reasons were sent out as a Word document attached to the first email of 22 July 2014. I have been given no explanation as to why the Respondent could not read thus read the ET’s Reasons as contained in that Word attachment. There is simply no explanation as to why the Respondent failed to lodge his Notice of Appeal within 42 days from that document thus being sent out to him.
21. In so stating, I make clear that I do not disagree with the Respondent that he was entitled to reasonable adjustments to be made to ameliorate or avoid such disadvantage as he might otherwise suffer as a result of his disability. On his evidence, however, no adjustment needed to be made once the ET sent out its Reasons in Word form, which it did on 22 July 2014.
22. I also bear in mind, as the Respondent accepts, that he was able to make a fairly detailed application to the ET for a reconsideration within 14 days of the sending out of the Word form the ET’s Reasons. He says he did that on the basis of what he recalled from the ET’s Judgment and Reasons given orally at the end of the hearing. He has not explained why he could not similarly lodge an appeal with the EAT.
23. For the Claimant, Mr Wolstenholme has observed that the Respondent’s evidence to the ET included a statement that he received assistance from his son in terms of reading documentation. It also seems apparent that, using his computer software, he would have been able to have voiced to him the ET’s Reasons after 22 July 2014. In these circumstances, I am unable to accept that he has made good his contention that he was unable to have the content of the Judgment and Reasons communicated to him. He has just not been able to explain to me why he was able to submit an application for reconsideration to the ET in the shorter time period for such an application but was not able to put in any form of Notice of Appeal.
24. Even if I was wrong in that assessment, and the Respondent was entitled to wait for a Braille version of the ET’s Judgment and Reasons, in due course those were sent, and I am still left without any explanation as to why no Notice of Appeal was submitted to the EAT until 15 January 2015, a very long time after he received the Braille-printed documentation. It is not a good explanation that the Respondent then spent time obtaining advice. Many people act in person before the ET and before this court; a difficulty in obtaining legal advice is not uncommon. The time limit still applies.
25. A further matter relied on by the Respondent is what he says was the advice given to him by the ET staff. He says that he was told by the caseworker that he had 42 days after actual receipt of the Braille-printed Reasons to send in his appeal. That would seem surprising, given that ET caseworkers might be expected to be very familiar with the rule that time runs from when documents are sent to the parties. Even if I accepted the Respondent’s evidence on this point, however, I do not accept that he was entitled to rely on a member of the ET staff for advice. Employees of the ET cannot be held responsible for errors by parties.
26. Even if I were wrong in that approach, however, and if I accepted that the Respondent might have been misled by what he was told, the difficulty remains that the Respondent still did not then submit his Notice of Appeal within good time after receiving the Braille-printed documents or within a 42 day time period thereafter. Sending in the accompanying documents, which he did on 15 December 2014, was plainly insufficient. He has simply failed to explain why his Notice of Appeal was not submitted until 15 January 2015. There is thus a further month for which there is simply no explanation, let alone any good explanation.
27. Assuming (as I am generally prepared to do) that parties do not intentionally miss time limits, in this case I am unable to see that the Respondent has provided an explanation for his default. It is certainly not one that meets the definition - even on the broadest sense of that term - of a good explanation. I am unable to see that any grounds have been demonstrated to warrant the exceptional exercise of the EAT’s discretion. For these reasons, I dismiss this appeal.