Faucher v Old Court Hospital [1995] UKEAT 836_94_1705

EAT
Faucher v Old Court Hospital
[1995] UKEAT 836_94_1705 · 1995-05-17
MR JUSTICE MORISON: This is an appeal against a refusal by the Registrar to extend Mrs Faucher's time for filing a Notice of Appeal against the decision of an Industrial Tribunal held at London (North) on 25 March 1994. The relevant facts are as follows: Mrs Faucher is of Afro-Caribbean origin and was employed by Old Court Hospital as an enrolled nurse from 1975 until she was dismissed on 20 June 1993. She presented her complaint to an Industrial Tribunal alleging that she had been unlawfully discriminated against by her Employers on the grounds of race and had been unlawfully and unfairly dismissed. That complaint was contained in her Industrial Tribunal application form IT1, which was received by the Industrial Tribunal on 27 September 1993, more than three months after the date of her dismissal and the date of the last act of unlawful discrimination. It was therefore out of time. The application is signed by Messrs Howe & Co, who are solicitors, dated 17 September 1993.On 8 March 1994, the Commission for Racial Equality wrote to the Regional Office of the Industrial Tribunal, London (North), in relation to this matter in these terms: "I wish to advise you that I have been appointed as the Legal Representative of the Applicant in the above case and should be obliged if you would note my interest. I confirm I have written to advise the Respondents of my instructions" and that is signed by Miss Hughes the Principal Legal Officer at the Commission. The matter came before the Tribunal on 25 March and on that occasion the Applicant was represented by Miss Hughes. The unanimous decision of the Industrial Tribunal was that the application was presented out of time. It was not just and equitable to extend the time. The facts found by the Industrial Tribunal were that on or about 6 September 1993, the Applicant's solicitors, Messrs Howe & Co, contacted the Commission for Racial Equality to ask if they could be of any assistance, not only in relation to the Applicant, but also in relation to three others allegedly in the same position as her.The person supposed to be dealing with the matter at the C.R.E. was a Mr McNellie, who had no details relating to the case, but he was aware that the applications had to be presented to the Industrial Tribunal by 19 September 1993 (which is a Sunday). Mr McNellie said he faxed through to the Industrial Tribunal Mrs Faucher's application at 1500 hrs. on 17 September 1993, which was the last working day before time expired. The Industrial Tribunal had no record of such a fax being received, but they had received three further applications which were faxed to them by Mr McNellie at 1800 hrs. The solicitor from the C.R.E., Miss Hughes, said that she had been told by Messrs Howe & Co, who did not appear to give evidence to the Industrial Tribunal, that they had sent all four applications, in writing, by courier to the Industrial Tribunal on 17 September 1993 but none of them had been received by the Industrial Tribunal.When Mrs Faucher realised that her colleagues had received acknowledgements of their applications and she had not, she contacted Messrs Howe & Co, who then faxed through an application which was received by the Industrial Tribunal on 27 September 1993, out of time. Mr McNellie said that he had not checked that Mrs Faucher's application had been received, although he said that the fax machine `does not always indicate that the transaction has been completed satisfactorily.' The Industrial Tribunal concluded that it was reasonably practicable for the Applicant to have submitted her application within the three months time period, and that it was through the negligence or incompetence of her professional advisers that one was not presented within the time, and they were not prepared to extend the time.The decision of the Industrial Tribunal was announced at the time of the hearing and the written decision with reasons for it was prepared within four weeks of the date of that hearing. That written decision was signed by the Chairman of the Industrial Tribunal, sent to the Secretary of the Tribunals, and entered by him in the Register in accordance with paragraph 20 Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 which I shall call "The Regulations" sent to each party on 21 April 1994. Paragraph 20 requires a written decision to be sent by post to the address specified in Mrs Faucher's originating application, which was Messrs Howe & Co of 2 Mozart Street, London W10 4LA. The Industrial Tribunal apparently did not regard the letter from the C.R.E., to which I have referred, as changing the identity of the representative and indeed without the participation of Messrs Howe & Co it is difficult to see how that could have been the case.A decision sent to the authorised representative of a party shall be deemed to have been sent or given to that party, and there is power given to applicants to change the address to which documents are to be sent, but this was not expressly done. Where documents are sent by post, the provisions of Section 7 of the Interpretation Act apply. Such a document is deemed to have been received in the ordinary course of the post, unless the contrary is proved, see T. & D. TRANSPORT (PORTSMOUTH) LTD. v. LIMBURN [1987] ICR page 696 . By a letter dated 29 July 1994, Miss Hughes of the C.R.E. asked the Industrial Tribunal for a review of their decision. She said that she had written four letters to the Industrial Tribunal asking for their written reasons for their decision. The first letter was sent on 13 April 1994, before the written decision had been completed, again on 5 May 1994, after the decision had been entered in the Register and had been sent to and presumably received by Messrs Howe & Co, the solicitors on the record, again on 1 June 1994 and finally on 6 July 1994. None of these letters were answered.On 25 July she received a copy of the Decision marked for her attention. In her letter of 29 July, Miss Hughes said that Messrs Howe & Co had confirmed to her that the courier had delivered the application forms to the Industrial Tribunal on 17 September 1993. She enclosed an invoice which showed that a courier firm had done a delivery for Messrs Howe & Co on that day. It did not show a delivery to the Industrial Tribunal, nor did it show a signed receipt for the documents referred to in the invoice. Not surprisingly, the Industrial Tribunal refused the application for a review, on the grounds that the evidence which the Applicant now wished to put before them was available at the time of the original hearing. The Chairman also said that the application for a review was out of time, as the decision had been sent to the parties on 21 April 1994. On 19 August 1994, the Employment Appeal Tribunal received a Notice of Appeal seeking leave to appeal out of time the decision which had been sent to the parties on 21 April 1994. The Notice of Appeal was accompanied by an Affidavit sworn by Miss Hughes setting out the facts already referred to. The application for an extension of time to file the Notice of Appeal was refused by the Registrar and the prospective Appellant appeals against that decision.It seems to me clear from the facts as I have stated them to be that there is no evidence to suggest that either the Applicant or the solicitors who were on the record for her did not receive a copy of the Decision within a reasonable time of it being sent. Miss Hughes does not say that the decision was in fact never received by the solicitors, and that the presumption of due receipt would work hardship. Nor can she contend, as it seems to me, that the Industrial Tribunal were ever informed expressly that Messrs Howe & Co were no longer the solicitors on the record to whom communications, such as the decisions, should be sent. However, I have to say that, if I had to exercise my discretion on the basis of what had happened up to the 25 July, I would unhesitatingly have come to the conclusion that what happened in this case not only was discourteous on the part of the Industrial Tribunal in not responding to the letters, but that Miss Hughes was led into a position where she could honestly believe that the Tribunal simply had not made their decision and that is why she had not been sent it. In those circumstances I would have been prepared to extend the time for appeal had those been the end of the facts, but they are not.Having received the Decision on 25 July and it being manifestly clear that the appeal was now well out of time, it was incumbent upon the solicitors, the C.R.E., to get on with an appeal as soon as possible, for in my judgement, instead of proceeding with due dispatch, there was an unacceptable delay between 25 July and the date when the communication with the Employment Appeal Tribunal was first received, namely 19 August. Whether it is to be regarded as a period of 25 or 26 days does not seem to me to matter. It does seem to me that, having received the Decision and being aware of the fact that time for appealing had a long past, the C.R.E. ought to have done more than they did. It took them four days before anything was done. There was then an eight day delay before Counsel was instructed and thereafter the matter proceeded at a pace more consistent with an appeal in normal circumstances, than one being conducted where time had long since expired. That is a matter which I would have taken into account and do take into account, in exercising my discretion as to whether I should, in these circumstances, extend time.That is not the end of the story. I have looked at the grounds of appeal which have been lodged in this case. It seems to me almost certain that, had I been prepared to extend time for an appeal, all that would have happened is that this appeal would then have been lodged by the Employment Appeal Tribunal for a preliminary hearing and would have been dismissed at that stage. I say that not only because as a matter of experience all appeals against time limit decisions are invariably listed for a preliminary hearing, but if one looks at the Notice of Appeal in this case it is manifest that there is no arguable point of law on the decision of the Industrial Tribunal which was sent in writing to the parties on 21 April. The grounds upon which the appeal is brought include the fact that the Tribunal erred in law and a number of matters are itemised:"(i) Placed undue weight on the Applicant's absence..." .The weight is a matter for the Industrial Tribunal, it is not a matter for this court.
"(ii) Failed to take into account that the Applicant had the benefit of legal representation to put the Applicant's case before the Tribunal on the date of hearing on 25 March 1994;"
It is not at all clear what point is being made.
"(iii) Failed to approach their task on the basis that evidentially there was a matter of fact to be determined as to whether the said claim had been submitted in time;"
It is manifest from the face of the decision, that the Tribunal were finding that the application had not been received. The same could be said about the next sub-paragraph. In relation to sub-paragraph 5, it is said:
"(v) Failed to consider and/or place sufficient weight upon the evidence available which may have established this fact ie. (a) Sworn evidence of the CRE Complaints Officer Hendy McNellie to the effect that he had faxed a copy of the Applicant's claim on the 17th September 1993 at 3.00 pm; (b) A letter dated 25th March 1994 from the Applicant's former solicitors named Howe & Co who also confirmed that they had taken steps to submit the Applicant's claim by courier."
With great respect, those points were taken into account and assessed and findings of fact were made by the Industrial Tribunal.In paragraph 11 of the Notice of Appeal it says:
"In the alternative if adverse findings of fact had been properly reached as to whether the claim had
been submitted in time The Tribunal thereafter failed to properly exercise their discretion..."In my judgement, that is not a point of law or even arguable as such. In paragraph 12 again it is said that insufficient weight was given to various matters. Again, that is not a contention which raises a point of law fit for argument before a full Tribunal. Accordingly I have no doubt at all that the appeal would have been dismissed at a preliminary stage, as not raising an arguable point of law fit for hearing before a full Tribunal. In those circumstances, although normally speaking it would be inappropriate for the E.A.T. to weigh the merits of a prospective appeal, where it appears to the court that a prospective appeal has no prospect of success, then that is, in my judgement, a matter that can be taken into account and given some weight.For those reasons I am not prepared to accede to this appeal. That said, I should make it plain that I have the greatest possible sympathy with the position of Mrs Faucher. She entrusted her lawyers with the task of presenting a complaint to an Industrial Tribunal, arising out of her unlawful dismissal. I have been told this morning and accept, that the three applicants whose claims were placed in time, have received agreed compensation in the total sum of £40,000. I have little doubt, therefore, on what I have been told, that her case would not have been treated any differently, had it been lodged in time. It is not her fault that it was not lodged in time. The reason why it was not lodged in time was because she has been let down by her advisors. It seems to me clear that her remedy for the recovery of such monies as she is entitled to lies against them in these circumstances. Accordingly, in my judgement, although this is very unfortunate in the sense that it represents a windfall possibly to the Employers, the fact is that, having regard to the rules of procedure which must be followed, I cannot legitimately exercise my discretion in this case. Accordingly I dismiss the appeal.