Ayobiojo v London Borough Of Lewisham [1995] UKEAT 176_95_2507

EAT
Ayobiojo v London Borough Of Lewisham
[1995] UKEAT 176_95_2507 · 1995-07-25
MR JUSTICE MUMMERY (PRESIDENT): The Tribunal have reached a unanimous decision on the striking out appeal. I will give my own decision on the extension of time appeal. In accordance with Mr Ayobiojo's request I will give the extension of time appeal decision first. In order to avoid unnecessary repetition, I shall set out the relevant events in respect of both appeals, before giving the reasoning on the extension of time appeal and on the striking out appeal. Both appeals arise out of the same background.There are before the Tribunal two appeals. The "extension of time appeal" is an appeal to myself In Chambers. The appeal is against the order made by the Registrar of the Appeal Tribunal on 15 March 1995, refusing to grant an extension of time in which to enter a Notice of Appeal. That appeal has been heard and argued separately from the striking out appeal, which was heard by the full Tribunal. That appeal is against an order made by the Chairman of the Industrial Tribunal held at London (South). The order is dated 31 March 1995 and was notified to the parties on 18 April 1995. The order strikes out the originating application in the case for non-compliance with an order for production of documents made on 17 November 1994.Both appeals are in proceedings between Mr B A Ayobiojo and the London Borough of Lewisham. The proceedings were started on 10 February 1994, when Mr Ayobiojo presented an application to the Industrial Tribunal complaining of racial discrimination. The Respondent was the London Borough of Lewisham. He complained of racial discrimination by them in these terms:
"The Authority [London Borough of Lewisham] constructively discriminated against me on racial grounds by applying a criterion (during selection) which has not been (or was not applied) applied similarly to a vast number of white people carrying out similar duties or to those carrying out duties which are more complex."
The discrimination was in relation to the post of a neighbourhood manager. The London Borough of Lewisham resisted the claim in a Notice of Appearance dated 17 February 1994. They pointed out in the Notice of Appearance that Mr Ayobiojo was not dismissed by them. He had never been employed by them. They said:
"The Applicant applied for the post of Housing Neighbourhood Manager at the Respondents Pepys Neighbourhood Office. He was shortlisted and attended for interview on 1 February 1994 along with 5 other candidates. The shortlist consisted of 4 black and 2 white candidates. The Applicant was not appointed. Following a selection process conducted in accordance with Council policy by reference to a set of rational selection criteria the Council decided that none of the candidates was suitable for the position.
The Council denies that the Applicant suffered racial discrimination of any sort at all."The next event of importance was that, on 17 November 1994, an interlocutory directions hearing was held. Mr Ayobiojo, who is conducting his own case with the assistance of friends, attended that hearing. At the hearing he was ordered to produce certain documents. The precise terms of the Order are contained in a letter sent to him by the Regional Office of Industrial Tribunals London (South) dated 19 December 1994. The Order states:
"Following an application by the Respondent, a Chairman of the Tribunals has ORDERED that on reasonable notice you shall on or before 31 December 1994 produce for inspection at Respondent's Office such of the documents specified in the Schedule below as are in your possession or custody or power and permit copies to be taken."
The schedule identifies two kinds of documents. One, the original certificates in respect of the following qualifications as from the attached document as marked and second, the Applicant's copies of all originating applications presented by him to the Industrial Tribunal, in the period January 1994 to 17 November 1994. The notes to the Order pointed out in paragraph 2:
"2. Failure to comply with this Order may result in your application being dismissed in whole or in part before or at the hearing.
3. The Tribunal has power to vary or set aside this Order on the application of the person to whom it is directed but can only do so for good cause. Any such application should be made to this office before the date mentioned above, giving reasons for the application."On 22 December 1994 Mr Ayobiojo wrote to London (South) acknowledging receipt of the Order saying:
"... However, the Order allowed me a mere nine days to respond in full. No doubt I will be appealing against this decision but in order to obtain advice and complete the appeal document properly I have been compelled to request the Tribunal to please allow me to make the said response on or before 30 January 1995.
The said appeal will cover both the items I was ordered to disclose to the Respondent under the scheduled items and the refusal of the Tribunal to issue Order to the Respondent to produce written response/disclosure of documents as requested by the Applicant during the interlocutory hearing of 17 November 1994. All of these points were contained in the letter/Orders written and posted to me on 19 December 1994."On 23 January 1995 the Industrial Tribunal at London (South) acknowledged receipt of the letter, which was referred to the Chairman who made the Order of 22 December, stating:
"The Chairman takes the view that nine days for you to produce to the Respondents the conservatively small number of documents referred to in the Order made against you is not unreasonable, particularly in view of the fact that you had been told at the hearing for directions on 17 November 1994, that this was the Order that the Chairman made. The documents sent to you dated 19 December 1994 was really by confirmation of the Chairman's oral order. Whilst this document, for the first time, sets a time limit, you have had over a month in which to assemble the documents which you were ordered to produce.
You do not suggest that you have complied with the Order in the last two weeks, and, if you have not done so, you are now in default."On 24 January 1995 Mr Ayobiojo wrote back to London (South) in response to that letter, expressing an apology to the Chairman for lateness in complying with the verbal order and saying that he intended no disrespect. He said:"Though I had a period of nine days to respond to the said order, nonetheless I should state that the order was issued around the Christmas period over which there were many public holidays. For that reason, in practice, I had about three working days to respond to the Chairman's order. As I have to represent myself, it is sometimes necessary that I take some advice from friends before writing to the Tribunal. On that occasion, my adviser was and, to date, is still on holiday. This was the main reason behind the long period - about a month - of postponement I requested. Though my instant reaction, as depicted during the last sitting on this matter, was to appeal against the Chairman's ruling, I was not sure whether or not there may be some legal reason why such action may be inadequate or capable of contributing adversely to my case. It was for that reason that I decided to seek advice before making a written and full response."...He then says that he is unable to take further advice on the matter and he is enclosing his full response to the order in the form of an appeal. Again he offers apologies to the Chairman. Attached to that letter is a document of the same date, 24 January 1995, which is headed "Notice of Appeal". It is addressed to the office of London (South) at Croydon. The opening words are:
"I hereby humbly appeal against the order of the Chairman dated 19 December 1994 at the preliminary hearing of the above case."
He sets out in the following pages of that document the grounds upon which he seeks to appeal against the order for the production of documents.On 8 February 1995 the London (South) office replied:
"Thank you for your letter of 24 January 1995. However, these Tribunals have no power to entertain an appeal against an Interlocutory Order, and you must make your appeal to the Employment Appeal Tribunal, if you wish to do so."
The appeal against that order was received in the Employment Appeal Tribunal on 15 February 1995. That is sixteen days after the expiration of the time limit of forty-two days for appealing to the E.A.T. from a decision of the Industrial Tribunal. On 24 February 1995 the Lewisham Legal Services Department wrote to the E.A.T. in relation to the application made by Mr Ayobiojo for an extension of time. The Council said that they opposed the application for extension on the following grounds:
"1) The Order against which the Appellant now appeals was made at a Directions hearing on 17 November 1994. The Order was clearly stated at that Directions hearing. The Appellant can have been left in no doubt as to what was required of him from 17 November 1994.
2) The Order against which the Appellant now appeals was confirmed in writing by letter dated 19 December 1994 from the Industrial Tribunal. The Appellant chose merely to request an extension of time to respond to that Order.3) The failure on the part of the Appellant to lodge the Notice of Appeal arises from the Appellant's failure to respond properly to the Order of the Industrial Tribunal. The Appellant knew full well, by 22 December 1994 at the latest, that he was to appeal against the Order of the Industrial Tribunal. However, the Appellant chose not to appeal at that stage."On 9 March 1995, Mr Ayobiojo made final written submissions to the E.A.T. in relation to his application for extension of time. The points made by him in that letter were first that he apologised for the delay in submission of his Notice of Appeal. He said that the reason for that was wholly or principally due to the mistake that he made in writing to the Industrial Tribunal, rather than the Employment Appeal Tribunal. He accepted that it was his mistake not to have verified and followed the correct procedure, but begged the Appeal Tribunal to take what he described as the "dimensional" aspects of the said mistake and other reasons tendered in to good consideration. He said this:"... Though a rather weak point, I will nonetheless tender the fact that the letter of Tribunal... telling me of the subject decision and my right of appeal failed to mention that such appeal should be directed to the Employment Appeal Tribunal rather than to themselves. I had mistakenly thought that only the decision of a full hearing consisting of a three-people panel could be brought before the EAT and that the matter in question here was too minor to be channelled to the EAT".Secondly, he said that there was a very recent decision of the Industrial Tribunal decided otherwise. He referred to the decision of the Chairman of another Tribunal where an order for the production of these documents had not been made. He submitted that it was a matter of national interest, precedent and record that the EAT should, on account of the distinct dissimilarity in the two decisions of the Industrial Tribunal on the same issue, make or want a ruling on the subject of his appeal. Thirdly, he said that it was true that the Chairman who made the decision he was appealing, actually indicated what his decision was going to be, but specifically said at the hearing that he would like to formalise the decision in writing, in order to allow for or take account of any further actions on either side, that is, appeal procedure, duration and so on. For those reasons he submitted that the extension of time should be granted.The extension of time was refused by the Order of 15 March 1995. Within a short time Mr Ayobiojo indicated that he wished to appeal to the President of the Tribunal against that decision. I will complete the rest of the events before dealing with the arguments. What then happened was that steps were taken in relation to the striking out of the proceedings for non- compliance with the Order. The position was that the Order for production of documents, under appeal and out of time, was not complied with. It has not been fully complied with to this day. Some certificates have been produced, but not all those covered by the Order and copies of the Originating Applications have not been produced. The next step is that on the day before an extension of time was refused, that is 14 March 1995, the London (South) Industrial Tribunal wrote to Mr Ayobiojo in these terms:
"1. In this case a Chairman of Tribunals considers that the Applicant is in default, having failed to comply with the requirements of the Order dated 19 December 1994.
2. This letter is to give you notice that the matter will be further considered by the Chairman on 30 March 1995 when he will decided whether your Originating Application should be struck out because of your non-compliance with that Order, and the proceedings terminated.3. You may bring to the attention of the Chairman any reasons for that course not to be taken by writing a letter to the Regional Office at this address, but that letter must arrive not later than 9.00am on the day that I have specified in the last paragraph."On 15 March, Mr Ayobiojo wrote a lengthy letter in response to the letter of 14 March, setting out the history of the matter; the Interlocutory Hearing on 17 November; the decision letter of 19 December; his letter requesting an extension of time on 22 December and the subsequent correspondence in January, February and March 1995. In conclusion, in resisting the striking out procedure, he said:
"The Chairman also asked me to provide copies of my originating applications with regard to other cases which were neither ruled frivolous, dismissed or already adjudged by the Tribunal. Particularly, I object to the Order stating that both the Certificates and the copies of the said Originating application should be taken by hand to the Respondent's Office where copies/inspection should be conducted by them. As mentioned before and as could be observed in the decision of another Chairman of the Industrial Tribunal, the decision of the Chairman on this occasion materially and logically differs to that earlier reached by the Industrial Tribunal especially when the Chairman on that other occasion has said that he would like to take advice before coming to a decision and presumably did so."
In the last sentence of the letter, he said that he hoped that all the matters stated in it proved the onus of his case, and show his innocence in the matter. He wished the Chairman to rescind his intention to strike off his case and said that he felt that the Chairman had been harder towards him than he had been to the Respondent, though he intended no disrespect by that observation.On 31 March 1995, the Order was made by the Chairman striking out the proceedings. In the reasons given for the Order, the Chairman referred to the matters already covered in the history of this matter: the hearing on 17 November 1994; the documents sent on 19 December 1994; and the request for an extension of time to 30 January 1995 made in the letter of 22 December 1994. In paragraph 3 the letter said this:
"On 25 March 1995 the Regional Office, having made enquiries of the Respondents regarding compliance with the Order, wrote to the Applicant warning him that I would consider striking out his Originating Application, and he should show cause in writing by 30 March 1995. On 16 March the Applicant faxed a letter dated 15 March 1995 to the Regional Office in which he rehearsed the history of the matter, contended that he was concerned about taking his certificates to the Respondents for inspection and copying, and also objected to having to produce to the Respondents copies of his Originating Applications in other cases..."
The Chairman observed that that letter added nothing to the arguments which Mr Ayobiojo had put to him at the hearing on 17 November 1994. There were enclosed with that letter of 15 March, copious copies of documents, including what appear to be copies of certificates of his qualifications. The Chairman stated he believed that Mr Ayobiojo had still not complied with the order made on 17 November by producing the required documents. He refers to the fact that further enquiries made by the Regional Office showed that an appeal had been lodged to the E.A.T., but the Tribunal had ruled that it was presented outside the time limits established for that purpose by the rules.The final paragraph of the Reasons states:
"The Applicant appears to wish to use the Tribunals to make claims against other organisations but not to comply with directions which it is necessary to give him in the course of the proceedings, and the requirements of the procedures for ensuring an orderly and fair trial of the issues raised between the parties. Both Applicants and Respondents must obey the Orders made by Chairmen or lodge a valid appeal against those orders. The Applicant is, apparently, not willing to comply with the Order in the terms in which it was made. In the circumstances which I have set out I consider that the Applicant has failed to show any reason why his Originating Application should not be struck out, and I so order."
The only error that appears on the face of that document is a typing error, in referring to a letter of 25 March 1995 in paragraph 3, when it should be a letter of 14 March. On 26 May 1995, Mr Ayobiojo served a Notice of Appeal running to eighteen pages against the striking out order. That is the factual background to both appeals. I will now deal with the reasons for the Orders we propose to make on the appeals separately.First, the extension of time appeal. On this appeal Mr Ayobiojo addressed me in Chambers at length. He said, respectfully, that he was sorry to have made the mistake in sending the documents to the Industrial Tribunal, instead of sending them to the E.A.T. He pointed out that all the documents he had sent were by Recorded Delivery. He said, and this was his main point, that the refusal of the extension of time for appealing was a punishment which was too severe in proportion to his offence, in failing to submit the Notice of Appeal in time. He said that it was not just to refuse him an extension of time. He was clearly making an attempt to appeal in sending in the documents to the Industrial Tribunal. He was confused by paragraph 3 in the letter of 19 December 1994, which referred to the power of the Industrial Tribunal to vary or set aside the Order and thought that that indicated that an appeal should be made to the Industrial Tribunal. He pointed out the difficulties in which he was placed in receiving a letter just before Christmas, requiring him to produce the documents by the end of December. He had too little time to comply with it. He pointed out again, as is mentioned in the documents submitted to the Tribunal, that the Order which he sought to appeal against was different from the Order which had been made by a different Chairman in other proceedings.In my view, Mr Ayobiojo has some ground for criticising the conduct of the correspondence by the Industrial Tribunal. It is unfortunate, that over a month passed between the Interlocutory directions hearing on 17 November and the 19 December when the formal parts of the Chairman's decision were notified to him. It is also unfortunate that the response to his letter of 22 December requesting an extension until the end of January 1995, was not sent by the Industrial Tribunal office until 23 January 1995. It should have been possible for that to have been sent earlier. The question which I have to ask in deciding this appeal, is whether Mr Ayobiojo has shown a good excuse for not complying with the time limits. The points made by Mr Algazy in resisting the appeal refer to the practice of this Tribunal in relation to time limits, as recently re-stated in the case of the United Arab Emirates v Abdelghafar [1995] IRLR243 . The points made by Mr Algazy were that the order for discovery was made on 17 November and subsequently confirmed in writing. He was out of time in putting in an appeal. It was not a matter of just a day or two. It was sixteen days out of time. According to the case of United Arab Emirates this Tribunal will only grant an extension in rare and exceptional cases. Time limits are time limits. 42 days are 42 days. It is necessary to consider the explanation put forward for failing to comply with the time limits. The explanation must be a good excuse, not just an explanation of what happened. Mr Ayobiojo has given an explanation, that is that he was not aware of the time limits and the proper appeal procedures. He thought that it was right to put in the appeal to the Industrial Tribunal. He did not realise that in the circumstances of an Interlocutory Order it should be made to the Employment Appeal Tribunal.In my view, the explanation given does not amount to a good excuse. It is clear to me that Mr Ayobiojo is capable of understanding the necessary procedures and, if he does not understand them, or needs more information, he obtains it. He put in his Industrial Tribunal application to the correct office. It should have been possible for him to find out, within the time limits allowed, what was the proper procedure for appealing against the order for production of documents. It is not a good excuse to send the documents to the wrong office in the belief that it is the correct office. For those reasons I dismiss the appeal from the Registrar's order refusing the extension of time.

PA/176/95 & EAT/534/95

MR B A AYOBIOJO v LONDON BOROUGH OF LEWISHAM

MR JUSTICE MUMMERY (PRESIDENT): There are a number of appeals listed in relation to claims by Mr Ayobiojo. There has been a preliminary discussion about how we should deal with them. After hearing submissions from both sides, we have reached these conclusions. First, we should hear Appeal PA/176/95 which we will call the "extension of time appeal". That will be heard In Chambers by me alone. Secondly, we will deal with EAT/534/95, which is the "striking out appeal". That will be heard by the full tribunal in open court. The consequence of that direction is that representatives of the London & Quadrant Housing Trust, who are the Respondents in the other appeal EAT/483/95, may not be present on the "extension of time appeal", but may be present on the "striking out appeal". Those are the directions as to the order in which we deal with the appeals and the manner in which we do so.The second area of dispute has arisen from the fact that Mr Ayobiojo has only been handed this morning the Respondents' Skeleton submission, which, although dated 10 July was, by an oversight in the Respondents legal department, not sent on, either to this Tribunal or to Mr Ayobiojo when it should have been. He has been handed this morning some Skeleton submissions, a chronology and some photocopy authorities. He says he has not had time to read them. It is important that he should read them. He asks that we adjourn the case for two hours to enable him to read them. We think it is not necessary to have that length of time to read the papers. We will adjourn until 11.15 a.m. to enable Mr Ayobiojo and his assistant to read these papers. He will not be prejudiced, because he will be able to present his arguments first and then he can hear the arguments set out in the Skeleton submissions presented by Mr Algazy. As the Appellant, he will have a right to reply to those, point by point. He will have two opportunities of going through the submissions, first reading them to himself with his assistant and, secondly, hearing them explained by Mr Algazy in the course of submissions. We shall now adjourn until 11.15 a.m. At 11.15 a.m. I shall return on my own to deal with Appeal PA/176/95 from which the representatives of London & Quadrant Housing Trust will be excluded.