Slater v Daintry [1999] UKEAT 1270_98_1103

EAT
Slater v Daintry
[1999] UKEAT 1270_98_1103 · 1999-03-11
MR JUSTICE MORISON (PRESIDENT) : This is an appeal against the Registrar's Order refusing to extend time to Mrs Slater who wishes to appeal two decisions of Industrial Tribunals. The first is the liability decision and the second is a quantum decision.The appeal against the first decision is 14 days out of time. The appeal against the second decision is within time. The brief facts giving rise to this appeal against the Registrar's Order is as follows.Miss Daintry was employed by the Slater family as their nanny. She complained that she had been dismissed because she had become pregnant. She brought a complaint in an Employment Tribunal which is dated 16 October and received by the Tribunal on 21 October 1997.The Respondent, Mrs Slater through her husband, who is a qualified solicitor, entered a Notice of Appearance, denying liability. The matter came on for hearing before Miss Donnelly sitting with two lay members. There was a four day hearing between 18 May and 16 July and fifth day on 29 July when the Tribunal reserved its decision. The conclusion of the Tribunal was that the Applicant was dismissed for a reason connected with her pregnancy, which was therefore automatically unfair; that she was entitled to compensation and that she had been unlawfully discriminated against on the grounds of sex, in that she was dismissed because she was pregnant. However, part of her claim for breach of the maternity regulations was dismissed.The written decision of the Tribunal was sent to the parties on 27 August 1998. Because of their decision on liability, there was required to be a remedies hearing which was initially scheduled for January but was brought forward to sometime in December. On that occasion, there was an award of damages or compensation in the sum of £4,534.76.It is accepted by the prospective Appellant that no criticism can be made of either of the two decisions except that it is contended that Miss Donnelly showed bias during the course of the hearing, and by hearing I mean the hearing on liability.There is no doubt that Mr Slater being a solicitor in Slater Links is to be taken to be a competent adviser. He has experience of Employment Tribunals and although as I understand it this was the first appeal with which he had been involved, it was his duty as a solicitor, to acquaint himself with the time limit provisions and how they operated. It is clear from the Employment Appeal Tribunal's own guidance that the fact that there is a remedies hearing awaited or there is an application of a review of the first decision, is no grounds not lodging an appeal.The explanation put forward as to why the appeal against the liability decision was out of time was precisely that Mr Slater thought that he did not have to put in an appeal until after the remedies hearing had been concluded. That was a mistaken view. It was his duty to find out how the time limit operated. He was not entitled to make an assumption that his instinct was correct. The law is clear, there are books available which tell him precisely what the law is and if he was in any doubt, he could have telephoned the Employment Appeal Tribunal offices and ask for their guidance. He did none of those things and it seems to me applying the principles set out in United Arab Emirates v Abdelghafar [1995] IRLR 243 , which help the Court in exercising its discretion in cases such as these, that this is not a case where time should be extended, subject that is to the second point which was raised in this appeal with which I will have to deal with in a moment.In an able argument, Mr Edwards of Counsel submitted that as the Industrial Tribunal did not enclose with a copy of the decision on liability, the leaflet which normally gets sent to the parties which draw attention to how decisions can be appealed and what must be done, that alters the significance attached to ignorance of the time limit in the Abdelghafar decision.With great respect, that might have been a reasonable point to make had the Applicant not been represented by somebody, namely her husband, who was holding himself out as a competent adviser. The purpose of the leaflet is to explain to those who do not have the benefit of competent legal advisers, what the position is. It seems to me to be unreal to suggest that a solicitor can rely on the absence of a leaflet to excuse his ignorance.In those circumstances, that part of the submission made by Mr Edwards is rejected. He raises another point. He says in effect, that Miss Donnelly displayed bias during the course of the liability hearing, and it is clear that there was what I might colloquially describe as something of 'a set to' between Mr Slater, who may have lost his objectivity as a lawyer through acting for his wife in what was a difficult domestic dispute, and Miss Donnelly. Occasionally that will happen in the course of a hearing, but it is submitted that as a result of what was said and done during the course of that hearing, Miss Donnelly displayed bias and that it would be unrealistic to allow the appeal to proceed in time in relation to remedy, without also being able to deal with the question of liability at the same time. I found this a more difficult submission, but at the end of the day I rejected it.The position seems to me to be as follows. Mr Slater had 42 days in which to complain about Miss Donnelly's conduct of the hearing which had taken place in July. He did not exercise his right to complain to the Employment Appeal Tribunal about Miss Donnelly's conduct within time, in circumstances where time should not be extended. If he has any complaint about the way that the second remedies hearing was heard, that can be raised in the appeal against the quantum decision, but I can make it perfectly clear that he will be confined on the hearing of that appeal to raising any matter of bias which he alleges against Miss Donnelly which is solely connected with the remedies hearing. The reason why I have reached that conclusion, is partly because the Appellant made no submission to the second Donnelly Tribunal that it should not sit to hear the remedies hearing, because of what had occurred on the liability hearing having received the decision of the Tribunal. He did not lodge an appeal against the liability hearing within time, and it seems to me quite undesirable that merely because bias is being alleged in relation to a second Tribunal decision, that that should provide a good reason for extending time which should be refused in the normal circumstances in relation to the first decision.By directing the Notice of Appeal in relation to the second decision is confined and confined only to what took place on that occasion, it seems to me that justice can be done between the parties. If it transpires that Miss Donnelly misconducted the remedy hearing then there would have to be a further remedy hearing. If on the other hand it was found that she had not misconducted the remedy hearing then that decision will stand.Accordingly, the Notice of Appeal will be confined to dealing with the matters relating to the second hearing only.It was drawn to my attention that there has been correspondence between the Employment Appeal Tribunal and Mr Slater, precisely on the question as to whether the second damages appeal raised any allegation of bias in it. He was written to on 16 November as follows:
"I refer to your Notice of Appeal received at this office on 22 October 1998. It is not clear from the Notice of Appeal whether the allegations of bias refers to the remedy decision or the liability decision. If the allegations of bias refer to the remedy decision, then in accordance with paragraph 9 of the Employment Appeal Tribunal practice direction, the Registrar has directed that you should submit an affidavit if you wish to pursue your allegations of bias of the Employment Tribunal. The affidavit must be received within 28 days of the date of this letter otherwise that part of the Notice of Appeal will be struck out. If the allegations of bias do not refer to the remedy hearing sent to the parties on 5 October then I would be grateful if you could confirm this back within 14 days from the date of this letter."
According, the Employment Tribunal file, there was no response to that letter. The matter was then set down for a preliminary hearing and is due to come on, on 15 March. The Respondent has complied with her obligations to provide us with a PHD form.On 23 February, a letter was sent to Mr Slater, from the Employment Appeal Tribunal as follows:
"I refer to my letter dated 16 November 1998. As I have not had a response to my letter, I am assuming that the allegation of bias in the Notice of Appeal refers to the liability decision sent to the parties on 27 August and not the remedy decision, which this particular case is concerned with."
According to the file which I have got, there was no response to this letter either. I have looked at the Notice of Appeal, it does seem to me that there is, in the light of my decision on the time limit point, nothing left in the Notice of Appeal on the remedy decision and accordingly, I direct that it be struck out. It seems to me clear that the appeal has been rendered empty by the decision which I previously come to and in any event, should be struck out as Mr Slater has been unwilling to correspondent with the Employment Appeal Tribunal over this matter when requested to do so.