Mills v Persimmon Homes (Wessex) Ltd [1994] UKEAT 272_93_2903

EAT
Mills v Persimmon Homes (Wessex) Ltd
[1994] UKEAT 272_93_2903 · 1994-03-29
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by Mr G Mills against the Registrar's decision on the 14th June 1993. The Registrar considered submissions by Mr Mills, the Appellant, and by the Respondents, Persimmon Homes (Wessex) Ltd, in relation to Mr Mills' application for an extension of time for appealing against the decision of the Industrial Tribunal. The Registrar refused the extension of time sought. Mr Mills was dissatisfied with that decision and by letter of the 16th September 1993 confirmed that he wished to appeal to the Judge.On the hearing of this appeal Mr Mills appeared in person, directed me to the relevant documents and made his submissions. Mr Clark represented the Respondents, Persimmon Homes (Wessex) Ltd.In order to understand the points raised on the appeal it is necessary, first, to state the principles upon which the Tribunal acts, and, secondly, to look at the facts relevant to the delay in lodging of the Notice of Appeal. The Rules provide that an appeal to the Employment Appeal Tribunal against a decision of the Industrial Tribunal must be lodged within 42 days from the date in which the decision of the industrial tribunal was sent to the parties. This time limit is strictly adhered to, because it is a time limit. It is a generous time limit of six weeks. The Tribunal will only grant extensions in rare and exceptional cases. It is not enough for a party who is out of time to give an explanation of why he is out of time. What has to be given is a satisfactory excuse for the delay so as to satisfy this Tribunal that it should depart from the strict time limit. The Tribunal does take a more lenient attitude to applications for extensions of time by people who are conducting their cases "in person". That is because they do not have the benefit of professional guidance and assistance and may therefore not be aware of all the procedures.I now turn to the facts of this case. The Industrial Tribunal sat at Bristol on the 8th March and 15th May 1991 to hear a claim made by Mr Mills against his former employers for unfair dismissal. He succeeded in establishing unfair dismissal, but, for the reasons notified by the Tribunal to the parties on the 26th July 1991, Mr Mills was not awarded any compensation.Mr Mills entered into correspondence with the Tribunal he wrote a letter on the 20th May 1991, that is after the hearing had taken place, but before he had been given the reasons, requesting a detailed explanation of the situation in which he appeared to have won his claim for unfair dismissal but was not awarded any compensation.After he received the Reasons of the Industrial Tribunal, in July, he wrote a letter on the 14th August 1991. The letter indicates that he had not only received the decision but had also received the form IT9 that accompanies a decision pointing out the rights of the party to a review of the decision or to an appeal to the Employment Appeal Tribunal on a question of law. Although Mr Mills' letter of 14th August 1991 is headed "Appeal Against Tribunal Decision" and refers in the first sentence to a request for an appeal, it appears from the contents of the letter and from a reference on the third page, that what he was requesting in fact was a review.The Industrial Tribunal did embark on a review on the 5th February 1992. For reasons notified to Mr Mills on the 25th February 1992, the Tribunal refused the application for a review. In the course of the decision, in paragraph 2, the Tribunal noted:
"To a large extent his argument is that the Tribunal got the decision wrong. [The Tribunal pointed out] That is not a matter which is open to him to pursue. If he considers that the Tribunal was wrong in law he should have pursued this matter on appeal."
They went on, nevertheless, to deal with one or two points of detail.After that decision was notified Mr Mills wrote to the Tribunal, on the 5th April 1992, referring to the Review Hearing on the 5th February, and informing the Tribunal that he wished to appeal against the decision. He said:
"As I now have to recourse to professional advice, the reasons will be defined upon completion of same. Would you therefore confirm acceptance of my notification. It may be of passing interest to you to note I was the only member of the Company to be made redundant during the past year of a national staff of 600. Hence my requirement for truth and justice."
The position then was that Mr Mills did not in fact send any Notice of Appeal against the Industrial Tribunal to the Employment Appeal Tribunal. He appears to have thought that it was sufficient for him to have corresponded with the Industrial Tribunal.He wrote a letter to his MP. On 4th January 1993 the Regional Office of the Industrial Tribunal sent a letter to Mr Michael Ancram, who had taken up Mr Mills' case on his behalf. The letter points out:
"Mr Mills application to the tribunal was heard on 8 March 1991 and continued on 15 May 1991."
It is pointed out that the decision was given orally at the hearing, but, before Summary Reasons could be given Mr Mills wrote the letter of the 20th May. The Full Reasons were sent to him on the 26th July 1991, along with a copy of IT9, which explains to all parties the next step. The 4th January letter then points out the right of a party to appeal on a point of law to the Employment Appeal Tribunal. It then refers to Mr Mills' letter of 14th August 1991, which was treated as an application for review - and the Review Hearing took place on the 5th February 1992. The letter then states:
"We have no record of any further correspondence from Mr Mills after the hearing and Mr Sara the Chairman confirms he received no correspondence either. The office practice is if a Chairman receives such correspondence it is passed to the administrative staff to date stamp and pass back for directions.
The Tribunal's letter concludes:If Mr Mills wishes to pursue the matter further I suggest he seeks advice as to the possibility of applying for leave to apply out of time to the Employment Appeal Tribunal at Audit House."That letter was passed by Mr Ancram MP to Mr Mills. That appears from the letter which Mr Mills then sent on the 20th January 1993 to the Industrial Tribunal. He stated he did not accept the position recounted by the Regional Office in the letter that no record existed of his letter. He sought further advice and support in order to see that his matter was fairly reviewed. Mr Mills was aware at that time, by reason of the letter to his MP, that if he wished to appeal the right place to do it was the Employment Appeal Tribunal. He did not in fact lodge his Notice of Appeal, dated 20th April 1993, until the 26th April 1993. That was long after the 42 days for appealing against the decision of the Industrial Tribunal to refuse to review the earlier decision.It was then pointed out to Mr Mills that he would need to apply for an extension of time. He did that.I have considered all points made by Mr Mills. I have reached the conclusion that he has not been able to provide a satisfactory excuse for the very long delay which has occurred in this case between the decisions of the Industrial Tribunal and his lodging of a Notice of Appeal to the Employment Appeal Tribunal. The facts adduced by him do not show that this is a case that falls within the class of rare or exceptional case in which the Tribunal allows a party to bring an appeal out of time. I agree with the decision of the Registrar. Although Mr Mills was acting "in person", it was within his power and ability to find out what the proper procedure was for appealing to this Tribunal against a decision of the Industrial Tribunal. Even when he learnt from the letter to his MP that the proper place to appeal was this Tribunal, at the address given, he did not lodge his Notice of Appeal until more than 42 days after he had received that notification.The chronology indicates that, however aggrieved Mr Mills may have been about the conduct, of his employers, and the fact that he received no award of compensation by the Tribunal, he has not pursued his claims with the diligence that the procedural requirements lay down.In those circumstances, the appeal against the Registrar's refusal is dismissed.