Erdem v South East London Area Health Authority [1996] UKEAT 906_95_1906

EAT

Erdem v South East London Area Health Authority

[1996] UKEAT 906_95_1906 · 1996-06-19

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the order made by the Registrar on 6 October 1995. The Registrar refused to grant an extension of time to the Appellant, Mrs Erdem, in relation to an appeal which she wishes to make against an order of the Industrial Tribunal, contained in a letter dated 7 June 1995.

After Mrs Erdem's advisors were notified of the refusal of the extension of time, a letter dated 11 October was written by the Plumstead Community Law Centre to the Registrar, saying that they wished to appeal against the Registrar's order, and that the grounds of the appeal were those set out in correspondence that had taken place between the Law Centre and Registrar, on the application for an extension of time. Their primary submission was that the appeal had been served in time. Only if that were rejected, did they seek an extension of time.

At the hearing today, Mr Schwab of the Plumstead Community Law Centre appeared for Mrs Erdem. The Respondents to the appeal, South East London Health Authority, gave an indication to this Tribunal that they would not be attending the hearing, but wished their case to be considered on the basis of written submissions. Those submissions were sent in by fax by their solicitors, Capsticks, on 23 May 1996.

The position under the rules and the decisions of the Courts and the Appeal Tribunal on the interpretation of these rules is clear. If you wish to appeal to this Tribunal against an order of an Industrial Tribunal, you must send in a Notice of Appeal within forty-two days from the date on which extended written reasons for the decision or order of the Industrial Tribunal, were sent to the Appellant. It is also a requirement of Rule 3 of the Employment Appeal Tribunal Rules 1993 , that a copy of the extended written reasons for the decision or order of the Tribunal, should be sent with the Notice of Appeal to the appeal tribunal.

In this case, the order sought to be appealed against is not a final order on the merits of the case. That hearing has not yet taken place. The appeal is against the order in the letter of 7 June 1995. That letter was sent after a directions hearing had taken place on 2 June. At the directions hearing it appears that Mrs Erdem was represented by Rosalind Howells of the Greenwich Council for Racial Equality. Ms Sills of Optimum Human Resources represented the Health Authority.

The Tribunal made directions in that letter. The Notice of Appeal against that was not received in this Tribunal until 28 July 1995. According to the Notice of Appeal, the grounds were these:

"At the directions hearing of the 2nd June the Tribunal directed that a document received by the tribunal office on 25th April 1995 should be treated as a fresh originating application alleging race discrimination. A preliminary hearing was then ordered to consider whether that application could be allowed in out of time."

Grounds are set out stating that the Tribunal had misdirected itself in law in coming to that conclusion.

The Notice of Appeal was received here nine days after the expiration of forty-two days from 7 June. The facts, so far as they can be ascertained, appear to be this - the letter containing the order made at the directions hearing was dated 7 June. It was received by the Respondent's representative on 8 June, but was not received by the Appellant's representative until 19 June. It is submitted, as a matter of fact on behalf of the Appellant, that the likelihood is that the letter containing the order and reasons for it, were not sent to the Appellant until close to 19 June. If that is right, the Notice of Appeal would be within time.

Mr Schwab has made the following points in support of the appeal against the Registrar's order. He has rightly drawn my attention to the fact that extended written reasons for this order were not obtained and served on the Appeal Tribunal. He submitted that perhaps the distinction between summary and full reasons is not adhered to rigorously in the case of orders of this kind. He pointed out that the order, which is the subject of this appeal, does not state expressly whether it is an order with summary reasons or with extended reasons. Mrs Erdem's representatives concede that they were at fault in not clarifying this point at the time, and in those circumstances, they may have difficulty in relying upon the failure of the Industrial Tribunal to stamp the order with the date on which it was sent to the parties.

The position on that is that with Interlocutory Orders, as opposed to orders made at the merits hearing on the substance of the complaint, the Tribunal is not required to give reasons in extended form, even when they are requested. It is apparent from Rule 10 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 that the requirement that reasons for the decision be given in extended form, when they are requested, either orally at the hearing or within twenty-one days of being sent the decision document, refers to "decisions" of the Tribunal. It is provided in Regulation 2 that in these regulations a "decision" does not include any other Interlocutory Order or any other decision on an Interlocutory matter, other than those which are specified; for example, an order striking out an Originating Application or a Notice of Appearance, or a determination under Rule 6.

For those reasons, I would not regard the absence of extended reasons as fatal to the appeal. Mr Schwab went on to make the following further points: that if Mrs Erdem is held to have failed to comply with Rule 3(1)(c) of the Employment Appeal Tribunal Rules , which is the rule relating to the provision of extended reasons, then the appeal would fail for lack of jurisdiction, unless that requirement were waived under Rule 39(3). My response to that point is that, for reasons already explained, I would regard the Appellant as having complied with the provisions of Rule 3(1) and if she had not, I would have regarded this as an appropriate case for waiving the requirement of extended reasons.

With those matters out of the way, I come to the substance of this matter. I have to decide first whether the Notice of Appeal was served in time. Secondly, if it was not, whether an extension should be granted. I mention straight away that, in view of the position taken by Mr Schwab, if the Notice of Appeal has not been served within time, this is not a case in which an extension could be granted. As Mr Schwab recognised, the test for granting an extension of time for a Notice of Appeal served out of time is an onerous one. That is made clear in the Practice Direction of this Tribunal and in a succession of authorities. Time limits are time limits. An extension will only be granted in rare and exceptional cases where the Appeal Tribunal is satisfied that there is a valid excuse for not complying with the forty-two day time limit. No excuse is provided here.

The appeal therefore turns solely on the question of whether or not the Notice of Appeal was served in time. On that, Mr Schwab said this: it may be the case that the letter from the Industrial Tribunal dated 7 June was not in fact sent to the Appellant on that date. In the absence of a date stamp for sending the letter from the Industrial Tribunal, it was not possible to state with any certainty when the order was sent to the parties. He asked me to act on the basis that, as it was not received until 19 June, it probably was not sent until shortly before then.

I am unable to accept this submission. The submission has had to be tested against what are the probabilities on the known facts. The facts which we know for certain, as opposed to facts which can be speculated about, are that the decision letter was dated 7 June; letters are usually sent out on the day or within a day or two of them being typed, dated and signed. We know from the submissions by the Respondents that they received the decision letter the next day. I agree with their submission that it seems unlikely that the letter to the Appellant was not sent out at the same time. It is unlikely that it would have taken eleven more days to reach the Appellant's representative than it took to reach the Respondent's representative.

I have reached the conclusion of fact, on the balance of probabilities and inferences from known facts, that the letter of decision was sent out to the Appellant at or about the same time as the letter was sent to the Respondent; that is 7 June. I am entitled to reach that conclusion as a matter of fact, even though there is no date stamp on the letter such as is usually stamped on a final decision containing summary or extended reasons. On the basis of that fact, this Notice of Appeal was out of time. It was not served within forty-two days of the 7 June.

The appeal is therefore dismissed.