Burke v West London Healthcare (NHS) Trust [1996] UKEAT 1484_95_2005

EAT
Burke v West London Healthcare (NHS) Trust
[1996] UKEAT 1484_95_2005 · 1996-05-20
MR JUSTICE MUMMERY (PRESIDENT) : On 16th July 1994, Mr Joseph Burke made an application to the Industrial Tribunal, complaining that he had been unfairly dismissed by the West London Healthcare NHS Trust from his position as a Community Nurse working with a learning disabilities team.The NHS Trust contested the claim. They said they had dismissed Mr Burke on 30th April 1994 on the grounds of gross misconduct established at a disciplinary hearing which decided that the appropriate action was to end Mr Burke's employment with the Trust.The case was heard by the Industrial Tribunal held at London (North) on 20th April and 6th and 7th July. It finished on 14th August 1995, when summary reasons were given for a decision that Mr Burke's application should be dismissed because his dismissal was fair.The extended reasons, explaining in detail why that decision was reached, were sent to the parties on 5th October 1995.Throughout the proceedings Mr Joseph Burke had been represented. He had instructed Mr Andrew Lancaster of Lewis & Dick, solicitors in Epsom. At the hearing in the Industrial Tribunal Mr Short of Counsel appeared for Mr Burke. Ms Sapeta appeared for the NHS Trust.Unfortunately, Mr Burke's Notice of Appeal, dated 11th December 1995, was not received in this tribunal until 20th December 1995 when he wrote saying that he wanted to appeal against the decision. He referred, in the appeal letter, to efforts made by his friend, Mr Layne, to obtain a ruling from the UKCC on the interpretation of the relevant provisions relating to the administration of medicine standards. Details of the appeal are given in that letter.The appeal served on 20th December 1995 was out of time, because the rules for appealing contained in the Employment Appeal Tribunal Rules 1993, state at 3(2):
" (2) 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 of the industrial tribunal were sent to the appellant, ..."
This appeal was received 34 days out of time. So, Mr Burke had to make an application for an extension.The Registrar considered the representations made by Mr Burke in his letter of 10th January 1996. The opposing submissions made by the NHS Trust in their letter of 5th February 1996. There is a letter in response from Mr Burke on 26th February 1996. The Registrar decided to refuse the application for an extension.On 6th March 1996, Mr Burke made it clear that he wished to appeal to the judge against that decision. This is the hearing of the appeal.Mr Burke has clearly explained the grounds on which he says the extension of time should be granted. Ms Sapeta has opposed that.The legal position has to be considered before I consider the particular points. The legal position under the rules is that, as one would expect, time limits are set and they are meant to be observed in the interests of everybody. The decisions of this tribunal on the principles on which the discretion to extend time is exercised indicate that there are three questions to be answered on any application for an extension of time.The first question is: what is the explanation for the failure to serve the appeal in time. The second is whether the explanation is a good excuse for not observing the time limit. The third question is whether there are any exceptional circumstances which would justify extending the time.In this case, Mr Burke says that there are exceptional circumstances for extending the time. He says that he has no legal experience himself. That is why he had a solicitor and Counsel representing him in his Industrial Tribunal proceedings. At the time when he received the decision rejecting his claim, his solicitor Mr Lancaster was leaving the practice of the firm. There were questions of outstanding fees which he had to negotiate at that time. The Industrial Tribunal case had cost him a lot of money. He said it was a devastating time. He had suffered, as a result of losing his case, a devastating psychological impact.He had been relying on the solicitors for guidance. He could not get that further guidance without putting them in funds. I have read some of the letters which were written to him by his solicitors. He did not have the funds. He said that he did not deliberately intend to ignore the time limits. He would have put in an appeal immediately, if he realised the consequences of not doing so. He also pointed to some help that he was receiving at this time from his close friend and former colleague Mr Layne. It had been decided at that time that Mr Layne would contact the UKCC for confirmation on their guidelines. The reason for the case going against him was based on an interpretation of those guidelines. No contact had been made by the Industrial Tribunal Chairman to confirm that her interpretation of the guidelines was that of the UKCC.I have read the letter written to the United Kingdom Central Council for Nursing, Midwifery and Health Visiting, by Mr Layne and dated 16th October 1995. The reply was not sent until 6th December 1995. Mr Burke wishes to rely on that as confirming that his interpretation of the guidelines was correct, and that he was not acting in breach of them.For the purposes of supporting his arguments, Mr Burke referred to the letters which he had written about his extension of time, in particular, the most recent letter which he sent to the tribunal on 7th May 1996. He sums up his argument on this appeal as follows:
"... my delay in not contacting the Employment Appeal Tribunal earlier was not a deliberate act, as I was awaiting the UKCC's confirmation of the interpretation of their rules, and my legal representatives breakdown in assistance."
He offers his apology for the delay in lodging the appeal, but says:
"it was because of the difficulties experienced with my legal representatives and the delay of the UKCC's vital piece of evidence."
That explains the failure to serve the Notice of Appeal in time. He says finally that it is important to him that he should be able to clear his name of dismissal from his employment for gross professional misconduct, and that I should extend the time, so as to give him the opportunity for justice to prevail.Ms Sapeta, for the health authority, opposes to the appeal. She says that I should dismiss it. She reminded me of the time-table of events, pointing out the time which had elapsed between 14th August 1995, when Mr Burke was told that he had lost his case with summary reasons, and the further time which passed after 5th October 1995 when the extended reasons for the decision were sent to him. Even further time had passed before his Notice of Appeal was served after the receipt of the letter from the UKCC dated 6th December 1995.Ms Sapeta submitted that the reason for the default was not an explanation which I should accept as a good excuse. The principal matter relied on was the correspondence with the UKCC. Ms Sapeta pointed out that that correspondence was conducted by Mr Layne, who was dismissed but did not bring an Industrial Tribunal claim. The letter Mr Layne had written to the UKCC on 16th October 1995 for guidance made no reference either to the Industrial Tribunal proceedings or to Mr Burke. Ms Sapeta submitted that the documents did not show that the reason for being late with the appeal was that Mr Burke was awaiting a reply from the UKCC. In any case, she said, the reasons given for not observing the rules could not be regarded as a good excuse.On that part of the case I should mention that, during the hearing, Mr Burke handed up some correspondence with his solicitors. It is clear from that that Mr Burke was aware that time was running against him. It was also made clear to him in the letters that the solicitors could not represent him on the appeal, unless funds were available. It was made clear to him that he could act in person. These letters were written to him in October 1995. But no steps appear to have been taken by Mr Burke until 11th December 1995, when he wrote the letter received here a considerable time after the UKCC reply had been received.Ms Sapeta submitted that what Mr Burke should have done was to put in a Notice of Appeal as soon as possible and then sought directions from the tribunal, if he was in difficulty in providing the further particulars he wanted to adduce on the appeal about the interpretation of the guidelines. Ms Sapeta submitted, on the final question of exceptional circumstances, that there were none here. He had been represented through the Industrial Tribunal by lawyers. They had informed him, after they ceased to act for him, of the need to observe the deadline for appealing. He had not acted expeditiously on the appeal. The information which he was waiting for from the UKCC was not necessary for him to serve an appeal. He could have served the appeal without that information and then used that information on the appeal, if it was helpful to him.In my view, though I have sympathy for Mr Burke and the importance of this case to him, I am not entitled to exercise the discretion in the way that he submits. He accepts rightly that he has not complied with the rules. I appreciate the difficulties he had over legal representation, over lack of money and of being upset by the failure of his claim. But, despite all this, he did have plenty of time, under the rules, to serve a simple document, often served by people who are unrepresented. If he had done that, that would have preserved his situation on the appeal. It would have preserved his right of appeal, while Mr Layne was helping him to obtain further information from the UKCC.It must be doubly upsetting to Mr Burke that he has received, what he claims is confirmation that his interpretation of the rules is correct. I must, however, in exercising this discretion, act consistently with the principles of law applied by this tribunal for many years. Those principles do not enable me to allow the appeal against the Registrar's decision. Her decision to refuse the extension of time is correct. I dismiss the appeal.