Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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(1) Ms M Hewer (2) Mr E Martin |
Appellants |
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(1) HCT Group (2) CT Plus CIC (3) LC Transport (UK) LTD (In Liquidation) |
Respondents |
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No attendance for the Respondents
APPEAL FROM REGISTRAR'S ORDER
Hearing date: 17 May 2024
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Crown Copyright ©
His Honour Judge James Tayler:
We enclose the Appellants Appeal against the written judgement of the Employment Tribunal, the Appellant's Forms ET1 and ET3s, the Employment Tribunal's initial judgment and the Employment Tribunal's full written reasons. [emphasis added]
Our preliminary checks indicate that this appeal has been lodged properly instituted. It will now be referred to your case manager who will ensure that it has been lodged in accordance with Rule 3 of the Employment Appeal Tribunal Rules 1993 (as amended). This includes checking to ensure that all necessary supporting documents have been received and whether the appeal has been received within 42 days.
Further to your email of today's date, please see the attached which is an email from the Employment Tribunal which attaches the short Judgment dated 16 September 2022.
We believe that this is the document that you have requested.
In our appeal we attached the Tribunal's full written reasons, which detailed their decision and full rationale relating to the identity of the employing entity. This is the point we are appealing against, and we would argue that this is the relevant document that the EAT needs to review.
We would respectfully suggest that we have submitted the Appeal and relevant supporting documentation in time. [emphasis added]
2. When navigating the e-file Portal it was not too clear in terms of how to upload the relevant documentation that was requested. It was quite challenging and was not user-friendly.
3. The information that we were informed to upload at that time, were the ETl's and ET3's, the Notice of Appeal and the written judgment. We duly uploaded all of the documentation required. We attach an image showing the documentation that we uploaded including the full written reasons which we maintain is the relevant judgement for the purpose of the appeal.
4. At the time of making the appeal on the e-file portal it was only possible to file one written judgment. We therefore submitted the judgment containing the Employment Tribunal's full written reasons dated 1 1 October 2022 and this is what we have referred to in our Notice of Appeal. The original Tribunal judgment dated 16 September 2022, did not contain the Employment Tribunal's full written reasons and we genuinely believed that the EAT would need to see the full written reasons as opposed to the short judgment which did not contain those written reasons. We also attach both of these judgements which clearly show that the full written judgment dated 1 1 October 2022 is the one that the EAT will need to view to determine the appeal.
6. It is correct that the EAT requested the original short judgment from us on 15 February 2023 and this was promptly provided to the EAT on the same day and as soon as we were notified.
In summary we would urge the EAT to allow the appeal to proceed on the basis that we provided our client's ETl's and ET3, the Notice of Appeal, and the judgment of the Employment Tribunal containing their full written reasons in time on 16 November 2022. The e-file portal also only allowed us to upload one judgment and we took the view that the judgment containing the full written reasons would be the relevant version that the EAT needed to view. The original short judgment does not contain the full written reasons of the Employment Tribunal.
Accordingly, we would respectfully request that the EAT allow the appeal to proceed as we have provided all of the documentation in time and in good faith with the intention of fully assisting the EAT. This includes the relevant judgment containing the Employment Tribunal's full written reasons.
We sincerely hope that common sense can prevail.
4. The solicitor with conduct of the appeal for the Claimant's gave a frank and clear explanation that "the e-file Portal was not too clear in terms of how to upload the relevant documentation that was requested. It was quite challenging and not user-friendly." He went on to explain that it was only possible to upload one written judgment and took the decision to upload the written reasons for judgment, which were most relevant on appeal. Notwithstanding the essential nature of the written record of judgment to the appeal, the e-file Portal permitted the appeal to be lodged.
6. By reason of recent amendments to the EAT Rules, the EAT has power to extend time for compliance with the rules relating to the institution of appeals under r37(5)
10. The failure to include the written record of judgment has been frankly explained by the solicitor with conduct of the appeal and remedied immediately on notice from the EAT.
11. The appeal is at least reasonably arguable and the obligation to deal with the case justly strongly tends in favour of dealing with the appeal on its substantive merits.
12. There are important consequences in particular for Mr Martin. It is the Claimants' contention that it is R1 who is liable to them as their employer by reason of TUPE, not R2 as found by the ET. Mr Martin has outstanding claims of discrimination to be brought against his employer, whether R1 or R2. Both R1 and R2 are in Administration, but it is believed that the prospects of R1 successfully exiting administration are higher than for R2, which seems destined to exit Administration into insolvent liquidation. The outcome of this appeal will effectively determine whether Mr Martin will be able to pursue his claims of discrimination at all.
3 (1) Every appeal to the Appeal Tribunal shall, subject to paragraphs (2) and (4), be instituted by serving on the Tribunal the following documents
(a) a notice of appeal in, or substantially in, accordance with Form 1, 1A or 2 in the Schedule to these rules;
(b) in the case of an appeal from a judgment of an employment tribunal a copy of any claim and response in the proceedings before the employment tribunal or an explanation as to why either is not included; and
(c) in the case of an appeal from a judgment of an employment tribunal a copy of the written record of the judgment of the employment tribunal which is subject to appeal and the written reasons for the judgment, or an explanation as to why written reasons are not included; [emphasis added]
67. Finally I need to consider whether the conduct of the claimant and his legal adviser should be separated out and considered separately. In Muschett v Hounslow London Borough Council [2009] ICR 424 Judge McMullen QC referred to Chohan v Derby Law Centre [2004] IRLR 685 (see paras 34 and 35(xv) above) as providing a basis in para 16 of that judgment for the fault of the legal adviser being a consideration in the exercise of the discretion to extend time. I think it worth pointing out that the Chohan case was concerned with an extension of time for submitting a complaint in a discrimination case under the statutory formulation of it being "just and equitable" to grant an extension. Clearly those concepts are considerations that any judge or tribunal would wish to bear in mind in the exercise of any discretion, but I think it should also be recognised that the exercise of discretion in respect of the commencement of proceedings at first instance might be somewhat different to the exercise of discretion in relation to extending the time limited for appealing and, apart from the judge having identified it as a factor, so far as I am aware there is no further authority on the point in the present context.
68. I agree with Judge McMullen that it can be considered as a factor but much may depend on the nature and degree of responsibility and I think it would be unwise for this appeal tribunal to attempt to investigate these matters in cases where allocation of responsibility is not immediately obvious; the intervention of legal professional privilege, even though I recognise it can be waived by the client, might make that very difficult and, in any event, my instinct is that it should not be undertaken, unless absolutely necessary. Consequently, I do not think that, generally speaking, very much weight should be given to such a factor in the exercise of discretion in the present context unless it can be clearly seen that the entire responsibility lies with the legal advisers. Even then I find it difficult to think of circumstances where legal advisers were at fault should tip the balance in favour of an extension.
69. I think considerations as to whether the claimant might have a remedy against his legal advisers in separate proceedings are of very marginal significance and I give no weight to that in this case, although I do not exclude the possibility that in some cases it might be a relevant consideration, although I suspect such cases will be few and far between. Also I am unable to accept Mr Crawford's proposition that the claimant should not suffer any disadvantage if the error might be thought to lie with his legal advisers. It does not strike me as a sound proposition that a claimant whose legal advisers may be thought to be at fault could be in a better position than a litigant in person who has made the mistakes himself, herself or itself.
70. In short it would take a very clear case before fault on the part of the legal adviser could be regarded as a factor and in my judgment this is by no means a clear case on the evidence.
143. The principles and guidance set out in Abdelghafar [1995] ICR 65 concerning the EAT's approach to applications to extend the time limit for appeals have been approved by this Court on several occasions. It is perceived as being a strict, perhaps 'hard-hearted', approach. But it is not inflexible. It involves the exercise of a discretion in a way which is 'judicial', 'even-handed' and, above all, fair.
144. We conclude that the exercise of the discretion involves recognising a material distinction. There is a legally significant difference between the case of an appellant who lodges a notice of appeal and nearly all of the documents required by rule 3(1) inside the time limit, and an appellant who lodges nothing until after the time limit has passed. The first such appellant has not fully met the requirements of rule 3(1), but has, nevertheless, substantially complied with them. How substantially depends on what document/documents is/are missing, how much of any document is missing, and how important the document is to the appeal. That appellant has also, on the face of it, complied with the time limit in rule 3(3). That difference is obviously material to the exercise of the discretion to extend time. It follows that that difference should, in principle, be reflected in the EAT's approach to the exercise of its power to extend time. We accept that the authorities about cases in which documents were missing do not refer to this distinction, and, it follows, do not consider it whether or not it is material to the exercise of the discretion. But we see nothing in the reported decisions in this Court to suggest that we are wrong to hold that the distinction we have identified is material to the exercise of the discretion.
145. The express recognition of the importance of that distinction is consistent with, and does not conflict with, the guidelines in Abdelghafar, by which we are bound. The basis of those guidelines is that the EAT takes a strict view of the importance of submitting an appeal within the time limit in rule 3(3). The three appeals with which we are concerned, however, are all cases in which an appellant has substantially complied with that rubric. Moreover, the guidelines are just that. They are not rigid rules of thumb. Rather, they are intended to guide the exercise of a very wide discretion, not to dictate the outcome of that exercise, as Mummery J made clear in Abdelghafar and as Rimer LJ repeated in Jurkowska (see paragraphs 24-28 and 53, 57 and 61-63, above).
147. Three further points follow. First, a case in which an appeal is lodged in time but a document or part of a document is missing is very likely to be a case in which the appellant has made a mistake. The mistake is the reason for invoking the discretion conferred by rule 37(1). The fact that a mistake has been made cannot, therefore, be used as a reason for barring the exercise of that discretion (and see paragraph 152.ii., below). An understandable or reasonable mistake about the documents cannot necessarily be discounted simply on the basis that, had the litigant filed the papers earlier, the mistake might have been picked up and corrected before the expiry of the time limit. That would be to exercise the discretion in a 'programmed' way. Second, before it can lawfully consider the exercise of its discretion in such cases, the EAT must clearly understand the appellant's explanation for her mistake, because, unless it does so, it cannot properly consider whether that explanation is satisfactory or not. Third, while the EAT has no duty to correct an appellant's mistakes, when the EAT in due course tells the appellant the she has made a mistake, the delay which is relevant to the exercise of the discretion to extend time is the delay between when the EAT tells the appellant of her mistake, and when she corrects it, a point recognised by Judge 1 (see paragraph 109, above).
If the appellant makes a minor error in complying with the requirement under rule 3(1) to submit relevant documents to the Appeal Tribunal, and rectifies that error (on a request from the Appeal Tribunal or otherwise), the time prescribed for the institution of an appeal under rule 3 may be extended if it is considered just to do so having regard to all the circumstances, including the manner in which, and the timeliness with which, the error has been rectified and any prejudice to any respondent.
35. The ordinary meaning of 'minor' is something that is comparatively unimportant. In the context of this rule it can be contrasted with a serious or substantial error. Rule 37(5) is designed to forgive errors which are negligible or of no real importance to the proper progress of an appeal.
36. The EAT Rules did and still do require an appellant to serve a Notice of Appeal substantially in accordance with the standard forms. It requires a written record of the ET's Judgment or Order and Written Reasons for it (or an explanation why they are not included). These are core documents in an appeal. Without the Notice the EAT cannot understand the complaint. Without the Judgment and/or Reasons the EAT cannot normally assess whether there has been an arguable error of law. It would be a rare case in which it could be said that the omission of one of these documents was a minor error. Such an error would normally be serious and of real importance to the proper progress of the appeal.
37. The other end of the spectrum is where all the required documents have been attached but just one or two pages are missing. It is likely to be a minor error to omit a single page of a document that is otherwise intelligible. Indeed even under the existing stricter test there were extensions granted where a single irrelevant page was omitted (Sud v London Borough of Ealing [2011] EWCA Civ 995 and HHJ Auerbach mentioned further examples of omission of isolated pages in Fincham v Alpha Grove Community Trust UKEATPA/0993/18 (2 March 2020, unreported)).
39. It may amount to a minor error to omit one or even more pages of a document required by rule 3(1) but that it is unlikely to be a minor error to omit the whole document or a substantial or important part of the document unless there are circumstances in which it can be said that the document is irrelevant to the appeal.