USG Optical Services v Taylor [1995] UKEAT 367_95_2610

EAT
USG Optical Services v Taylor
[1995] UKEAT 367_95_2610 · 1995-10-26
MR JUSTICE MUMMERY (PRESIDENT) : This is an appeal against the Order of the Registrar on 1 May 1995. The Registrar considered an application by the Appellants, USG Optical Services, for an extension of time for appealing against a decision of the Industrial Tribunal.The Industrial Tribunal heard a claim for unfair dismissal brought by Mr Taylor against USG Optical Services on 13 September 1994. The Tribunal unanimously decided, in full reasons notified to the parties on 11 November 1994, that Mr Taylor had been unfairly dismissed. USG Optical Services were ordered to pay him the sum of £6,547.61 compensation and a further sum of £110.48 in respect of unlawful deductions from wages.A notice of appeal (in the proper form) by USG Optical Services was not received in the Employment Appeal Tribunal until 24 March 1995, out of time. The period for appealing against the decision is 42 days from the date on which the full reasons for the Industrial Tribunal decision are sent out. The notice of appeal was, therefore, 91 days outside the time-limit.Mr Gill of USG Optical Services was informed by this Tribunal by letter of 3 April 1995, that he should apply for an extension of time in which to appeal, setting out the reasons for delay.After considering the reasons provided for the delay, the Registrar made an Order on 1 May 1995, refusing the extension of time. On 4 May, Mr Gill wrote to the Tribunal, saying he wished to appeal against that Order. He was informed by letter of 9 May that his appeal would be set down for hearing before a judge and the parties would be contacted before a suitable date was fixed.This is the hearing of the appeal. Mr Gill has attended in person. There has been no attendance on behalf of Mr Taylor, but there is a letter to the Registrar dated 24 April 1995 objecting to an extension of time. The letter says that Mr Gill is trying to appeal outside time-limits. Mr Taylor strongly objects to an extension being granted. It stated that:
"Mr. Gill had every opportunity to attend the Tribunal in September [that is, the Industrial Tribunal] and there has never been any indication that he did not know of the Tribunal date, but he chose not to come and present his case.

Mr. Taylor is in the process of taking his claim through the Courts..."

in an attempt to enforce the award of compensation.The position on the appeal from the Registrar's refusal to extend time is that I must be satisfied, before granting an extension of time, that there is a good excuse for the delay which has occurred. It is incumbent upon the Applicant for an extension of time to provide an explanation for the delay. The Tribunal then decides whether that explanation is a good excuse and whether, in all the circumstances of the case, it is proper to grant an extension of time.The facts of this case are somewhat unusual. Mr Gill has informed me that he was unable to attend the hearing before the Industrial Tribunal because of an injury which resulted in him being off work. He phoned the Industrial Tribunal to advise them that, due to circumstances beyond his control, he was unable to attend the hearing, due to take place on the following day, 13 September. The Industrial Tribunal advised him to put this in writing, with details of his defence. That was done and faxed to the Tribunal. The Tribunal did not suggest that the hearing should be postponed or adjourned, nor did the Tribunal request that he should provide a medical or doctor's report in respect of his injury. The result was that the hearing took place on 13 September, without him or his representative being present. As he was not there or represented, there was no one to put his case or to cross-examine the Applicant on his case. Mr Gill's complaint is that Mr Taylor lied and made false statements to the Tribunal and, in consequence, won the case.When Mr Gill became aware of the decision of the Tribunal and the summary reasons for it, he wrote a letter to the Industrial Tribunal on 26 September. He sent a copy of that letter to the Employment Appeal Tribunal. In his letter to the Industrial Tribunal he acknowledged receipt of the decision with summary reasons and said this:

"I am accordingly notifying of my appeal against the decision."

and set out below the reasons why he wished to appeal against the decision.In his letter to the Employment Appeal Tribunal on the same date, Mr Gill enclosed the letter to the Industrial Tribunal and said:

"Accordingly I await to hear from you."

He heard nothing from the Employment Appeal Tribunal in response to that letter. He did, however, receive a letter from the Industrial Tribunal Regional Office in Birmingham, dated 12 October 1994, which said this:
"Thank you for your letter dated 26 September 1994 the contents of which are noted.
If you intend to appeal the decision, you will need full reasons of the decision.These will be issued in due course and should be sent to the Employment Appeal Tribunal in London together with your notice of appeal."The full reasons were notified in due course. As I have already mentioned, they were sent out to the parties on 11 November. Mr Gill did not send in a notice of appeal to the Tribunal. He has given two reasons for not doing that. The first is that he thought he had already appealed when he sent the letter of 26 September, setting out why he wished to appeal the decision given on summary reasons. He thought it was sufficient to lodge an appeal that the Employment Appeal Tribunal were notified of his intention to appeal in the letter to the Industrial Tribunal. Secondly, he says that he did not have the right form on which to complete the notice of appeal. He did not have it at that time and he did not receive one from the Employment Appeal Tribunal until a fax of the form was sent to him of the form on 17 February 1995. That fax was sent following a letter Mr Gill wrote to the Employment Appeal Tribunal dated 15 February referring to a telephone conversation which he had with the Tribunal and an order he had received from the West Bromwich County Court requiring him to pay £5,483.30. He faxed to the Appeal Tribunal a copy of the letter sent to this Tribunal on 26 September and a copy sent to the Industrial Tribunal, commenting that he had not heard any further from either. He said he would be grateful if we could look into the matter and advise him. The response was to send him the notice of appeal on 17 February. He did not complete that until 21 March, that is over a month later. Mr Gill tells me that the reason for that delay was that he needed to see solicitors about it.The question I have to decide, therefore, is whether these explanations for not serving a notice of appeal in the proper form, within the 42 days from the full reasons being sent out, amount to a good excuse. Mr Gill submits that they do and, in his skeleton argument, does provide a full explanation of his understanding of the position and the reasons why the proper form of notice of appeal was late. In a letter dated 26 April 1995 he sets out a summary of the relevant events and dates which I have already summarised.In my judgment, the facts relied on by Mr Gill do not amount to a good excuse for failing to comply with the time-limit of 42 days. The reason why they do not amount to a good excuse is that, as appears from the letter sent to him by the Industrial Tribunal on 12 October, it was made clear to Mr Gill that he needed full reasons for the purpose of appealing. When they were issued to him it was made clear that he should send them to the Employment Appeal Tribunal, together with a notice of appeal. He did not do that and, although he received the full reasons in the middle of November, he did nothing further until the order made by the West Bromwich County Court in February 1995. Even then, when he was faxed a completed copy of the notice of appeal form on 17 February, it was over another four weeks before he submitted a notice of appeal.There has, therefore, been long delay. There is, in my judgment, no good excuse for it. Mr Gill says that he did not have a copy of the proper form for completing a notice of appeal, but it does not appear that he did anything to obtain a copy between receiving the full reasons in the middle of November and writing to the Tribunal in February 1995. He should have realized from the letter of 12 October from the Industrial Tribunal that it was incumbent on him to take action by sending in the full reasons to this Tribunal along with the notice of appeal. If he did not have a proper form, he should have written or faxed at that time to the Employment Appeal Tribunal to obtain one, so that he could fill it in.In brief, this appeal is long out of time. Although I can understand how Mr Gill may have thought initially that he had appealed by sending in a letter on 26 September, the letter of 12 October makes it clear that it was necessary for him to send in the full reasons, together with a notice of appeal. He did not do that. When he received the full reasons, he would have been notified of the fact and importance of the 42-day limit. That was not complied with.For those reasons, the Registrar made the correct order when she refused to extend the time for appealing. I, therefore, dismiss the appeal.