Hemani v Hemani & Anor [1995] UKEAT 1020_94_0112

EAT

Hemani v Hemani & Anor

[1995] UKEAT 1020_94_0112 · 1995-12-01

MR JUSTICE MUMMERY : This is an appeal against the order of the Registrar on 20th February 1995. She refused an application for extension of time for appealing. The application was made by Mrs Hemani. Mrs Hemani brought a claim under the Wages Act 1986 against Mr Hemani and S & Y Hemani, alleging she had worked in the shop with her husband the respondent, from February 1978 to November 1989, and again in January 1990! She has not yet received a single penny in wages, salary or profits.

The hearing of the claim took place before the Industrial Tribunal in Bedford on 9th August 1994. The Tribunal heard Mrs Hemani present her case in person. The respondents were not present or represented. The Tribunal unanimously decided that they had no jurisdiction to hear the complaint. Their conclusion was that the application was presented more than three months after the act complained of. In those circumstances the Tribunal had no jurisdiction to entertain the complaint.

The Tribunal referred to the time limits contained in Section 5(2) of the Wages Act and said:

"On the basis of our findings, we do not accept that it was not reasonably practicable for the complaint to have been presented earlier than 4 years after the events complained of and her complaint is therefore out of time and must fail on that ground since we have jurisdiction to deal with it."

Mrs Hemani's complaint was not presented to the Industrial Tribunal until 25th January 1994. It was, as already indicated, in respect of arrears of wages alleged to be due from 1978 to 1989 and again in 1990.

The full reasons for the Tribunal's decision were sent to the parties on 16th August 1994. Under Rule 3(2) of the Employment Appeal Tribunal Rules 1993 , the period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision or order of the Industrial Tribunal were sent to the appellant. It would be noted that it is the date on which they were sent that starts time running, not the date on which they are received.

In this case the Notice of Appeal was not served by Mrs Hemani until 4th October 1994. That is seven days after the expiration of the 42 days from the date when the extended reasons were sent. Mrs Hemani argued in her letter to the Registrar and has argued again today on the appeal from the Registrar's refusal, that this is a case where she has a good excuse for not serving the Notice of Appeal in time, and that it is an exceptional case for extending the time for appealing.

The main excuse put forward by Mrs Hemani is that she did not in fact receive the extended reasons until 30th August 1994. The reason for the time-lag between sending of it and the delivery is that most of her mail has been delivered at the house next door, No. 93 Oakwood Drive, St Albans, (she lives at No. 95 Oakwood Drive). She says that until May 1985 they used to live at No. 93 Oakwood Drive. She also says that the mail often ends up in another No. 95 Oakwood Drive, in Bricket Wood not in St Albans. It takes a few days for the occupant of the Bricket Wood address to re-direct the mail to Mrs Hemani's address at St Albans. Mrs Hemani said that, as soon as she received the decision at the end of August 1994, she rang the Industrial Tribunal at Bedford. The Court Clerk there was rude to her and slammed down the phone. She rang again and asked the Tribunal to forward all her papers and documents, but that has not been done. She next rang the office of the Employment Appeal Tribunal and spoke to various people. She said that she was passed around from pillar to post, and finally spoke to Mr Patel, Mr Patel works in the General Office of the Appeal Tribunal. She says she briefly explained the problem to him. She remembers the conversation. Her recollection is that Mr Patel told her that he would arrange for the appeal papers to be sent to her as soon as possible. He also explained to her that she would have 45 days to appeal. She says she clarified with him whether that was 45 days from the date she received the appeal papers. She says Mr Patel answered that was "Yes". She relied on that in relation to the service of the Notice of Appeal.

In addition, Mrs Hemani explained that she has had her hands full of other problems. She is a one parent family. In that position she has little time left to do various things that might have to be done in these proceedings. Her main point is that, in relation to this appeal, she relied on advice from this Tribunal, through Mr Patel, that time did not start to run for appealing until she had received the decision.

In my judgment, the Registrar was right in rejecting that as a good excuse for not appealing in time. I would dismiss this appeal against the Registrar's decision.

The fact is that, when the decision was received by Mrs Hemani, she also received with it notes on Tribunal Procedure, which accompany all decisions when they are sent out. They advise the recipient of the procedures and time limits for applying for a review and for appealing against the decision to Appeal Tribunal. Those notes clearly state that the time for appealing is 42 days from the date stamped on the decision. That is the date when the decision was sent out. It could not be clearer. In those circumstances it is not, in my view, possible for Mrs Hemani to say that she had a good excuse for not appealing earlier because she was given to believe by Mr Patel that she had a longer period.

As far as the conversation with Mr Patel is concerned, it is not a matter that I can safely rely upon in deciding whether there is good excuse for a late service of a Notice of Appeal. I do not know what Mr Patel said, I have only Mrs Hemani's recollection the question and of the answer. Even if she left the conversation with him in the belief that she had 45 days from the end of August 1994, she also had in her hands clear written instructions that the time for appealing was different than she may have been led to believe on the phone. She should have observed the written notes or checked the position. There was a full four weeks for appealing after she had received the notice. The fact that there was a gap between the sending of the notice and the receipt of it, was an even greater reason for expediting the service of a Notice of Appeal. There is no good explanation or excuse from Mrs Hemani as to why she left serving the Notice of Appeal until 4th October 1994, when she did so by hand. I have heard nothing to explain why she could not have served it on 4th September or 14th September or 24th September 1994. No reason has been offered for waiting until 4th October 1994. In those circumstances Mrs Hemani has not shown a good excuse for the delay. There are no exceptional circumstances in this case which would justify extending the time for appealing.