MISS MAUREEN LYONS v LONDON BOROUGH OF NEWHAM [1999] UKEAT 1546_98_2605

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1546_98_2605Case No Appeal No. PA/1546/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS MAUREEN LYONSAPPELLANTLONDON BOROUGH OF NEWHAMRESPONDENT
Before
Mr Justice MorisonDate 26 May 1999
[1]APPEARANCES For the Appellant MR D J EDWARDS (Representative) ` For the Respondents MR R DUNFORD (Solicitor) Legal Services Dept London Borough of Newham Town Hall, East Ham London E6 2RP MR JUSTICE MORISON (PRESIDENT): This is an appeal against the Registrar's refusal to extend time for the lodging of a Notice of Appeal. As I understand it the appeal which Miss Lyons wishes to make is against the Tribunal decision on liability, which dismissed her application for Unfair Dismissal. Subsequent to that decision which was sent to the parties on 23 rd January 1998, there was a further hearing before the Employment Tribunal in relation to an application made by Newham Council, her former employers, that they should be awarded costs. The Employment Tribunal made an order for costs in the sum of £500 by a decision that was sent to the parties on 21 st October 1998, following a hearing on 12 th October 1998, which the Applicant attended. She argued her own case.[2]The Notice of Appeal is in very short form. It says that she is appealing the decision held at Stratford on 20 th October and 5 th and 6 th January and that obviously is an appeal against the decision on liability as the dates tie in. She says that she is appealing the decision:
"… as I feel the decision of the Tribunal has made a wrong decision against me. On a point of Law, as the Documents of the Social Services were incorrect that not all the relevant information was not in the Document at the time of the Tribunal hearing."
The Appellant was invited to say why there should be an extension of time and by a letter sent dated 27 th January 1999, she said that she would like to appeal her case for reasons that she was stating in the letter, she said this "My solicitors advised me not to appeal my case, as they did not think that it would be to my advantage. It wasn't until after my case was heard, that I realised that some important information from Mrs Rogers statement, was left out from the Social Services Documents. Which was very important to my case. I am appealing on points of Law. I was given bad References. Important information was left out from documents with regards to a witness which would have helped my case. I was dismissed from my position as a home help, for accepting a gift that I did not have. An important witness was not at the court on the day of my hearing, and was therefore not questioned. Which did not help my case."[3]And in a further letter of 18 th February 1999 to the Employment Appeal Tribunal, the Appellant indicated that some weeks later she was reading through her case and realised that information from Mrs Rogers statement was not added to the documents produced to the court which clearly stated that (I paraphrase) 'I was not involved with regard to the painting of the property. I again took this to another solicitor who read my case and advised me to appeal'. She then says that she has had a very distressing time which has played on her health considerably, that she has had to move from her house because of repossession of her property, and has been required to move into an uninhabitable house. All of this she has found very difficult to deal with. She apologises for the late appeal which she attributes to her health and state of mind which prevented her effectively from getting on with her life in any shape or form and she says that "I feel I must sort this very unfair situation out before I can get on with my life again."[4]The first question that I must ask myself is what is the explanation that is advanced for the delay in lodging the Notice of Appeal in this case? I accept that in this case there are a mixture of reasons as to why the appeal was lodged late. The first is plainly the distress which she has suffered from ever since she was suspended from her duties from the Council some 18 months before she was dismissed. Secondly, after her dismissal, she was obviously in a distressed state. She was dismissed for gross misconduct which of course has damaged her prospects of getting other employment. Thirdly, she was distressed I am sure, when she read the decision of the Employment Tribunal which dismissed her complaint, holding that although it was a harsh judgment for the Council to conclude that she had been guilty of gross misconduct, it was one which the Respondents were entitled to reach.[5]The second element was that she had been advised by her lawyers not to appeal as they did not think that it would be to her advantage. It is to be pointed out that at the Hearing on Liability she was represented by Counsel, albeit that her Counsel had been engaged only a fortnight or so before the hearing started. She was, therefore, a person who had the privilege of having legal representation at the Employment Tribunal and would have been in a position to have taken advice, as it appears she did on at least two occasions, after the decision had been arrived at.[6]It seems to me that the explanations that have been put forward do not excuse the delay in this case. I have to point out that she was not so confused that she was unable to attend the hearing before the Employment Tribunal in relation to the Application for Costs on 12 th October 1998. If she was in a state that she was able to represent her own interests in relation to the question of costs at that date, it seems to me that she must have been in a position to lodge an appeal against the liability decision, albeit she would still have been well out of time in relation to it. It is a case where she has had the benefit of legal advice, which initially at any rate, was negative on the basis that they no doubt took the view that she did not have any arguable case on a point of law which is the limit of this tribunal's jurisdiction.[7]Thirdly, I take into account also the fact that as the Notice of Appeal stands at the moment, I am not persuaded that there is in any event within it an arguable point of law, so by refusing to extend time I recognise in this case that I will not be causing a loss of a valuable right to Miss Lyons. Her right to appeal is not of value in this case having regard to the complaints which she wishes to make about the decision of the Employment Tribunal, which don't amount in my judgment, to points of law.[8]But leaving that aside, in the exercise of my discretion, taking account of the length of the delay, which is some 326 days in relation to the liability decision, it seems to me that this is not a case where time should be extended. In the exercise of my discretion therefore, I dismiss this appeal from the Registrar.