Banks v Produce Studies Ltd [1999] UKEAT 400_98_0102

EAT
Banks v Produce Studies Ltd
[1999] UKEAT 400_98_0102 · 1999-02-01
MR JUSTICE MORISON (PRESIDENT) : This is an Appeal from the Registrar's refusal to extend time in relation to part of a Notice of Appeal which Mrs Banks has filed in litigation in which she is involved against her former employers, Produce Studies Ltd. Neither the Appellant nor the Respondents have appeared before us this afternoon but we are content, as they request, to deal with this matter on the basis of the written representations of the parties.The dispute between the parties has extended over a significant period of time. I take the chronology essentially from the skeleton argument put in by Mrs Banks, the Appellant. On 24 April 1997 she was made redundant, she says she was dismissed without warning, and left the company on that day. On 10 September her complaint of unfair dismissal was heard by an Industrial Tribunal who indicated that they were satisfied that the complaint of unfair dismissal had been made out and that a remedies hearing would take place at a future time. On 3 October 1997 the extended reasons for their decision were issued. There is no appeal against that decision. The employers made an application for a review of that decision on the basis that the Tribunal erred in concluding that a lack of consultation with Mrs Banks had been unfair because it deprived her of the opportunity of properly considering the offer of alternative employment on a full time basis. The employers' position was that Mrs Banks, the Appellant, had made it plain that she would not be willing to take up full-time employment for medical reasons and that, therefore, the Tribunal's comment to the effect that had she been given a proper opportunity in the consultation process she might have concluded that the alternative offer should be accepted was unsupported, if not contradicted, by the evidence.The Tribunal re-convened for the purposes of the remedy hearing and they considered, on 17 October 1997, first of all the application for a review. The Tribunal rejected the employers' application but, when they went on to consider remedies, they effectively awarded Mrs Banks three week's compensation only on the basis that that was the loss which she sustained as a result of the unfairness; the unfairness being a procedural unfairness in a redundancy context. Had she been consulted properly, over a three week period, the Tribunal were of the view that the dismissal would inevitably have followed, therefore the compensation was limited to the period of three weeks.On 14 November 1997 their decision on compensation and in relation to the review was promulgated. Time to appeal ran from that date. The Appellant, Mrs Banks, in turn submitted an application for a review by her letter dated 25 November. On 9 December 1997 the Tribunal thanked her for an earlier letter and said that "the matter had been considered by the Chairman who heard your case, your application for a review is granted and the review hearing will take place on a date to be fixed". Subsequently she was informed of the date of the new hearing. She received another letter on 20 January 1998 from the Tribunal saying that the hearing on 9 February would be to consider her application for a review in accordance with Rule 11(6) of the Tribunal Rules:
"If the application is successful, the parties should be prepared for the Tribunal to proceed to hear the review immediately thereafter in accordance with Rule 11(7)."
It seemed to Mrs Banks, and we think reasonably so, that there was a conflict between what was said in that letter and what had been said in the letter of 9 December where her application for a review had been granted. She expressed dissatisfaction with what she perceived to be a change of position and she requested the Tribunal directly to refer her case to appeal. There was an attempt to justify the Tribunal's position by it saying that "the letter dated 9 December, referring to her application for a review being granted, meant that her application was not refused".At all events, the matter came back before the Industrial Tribunal on 9 February 1998 to consider her application for a review. She raised, essentially, two points. The first was that the Industrial Tribunal had simply failed to make her a basic award and secondly she considered that their conclusion that she was only entitled to compensation limited to three weeks was erroneous and that they should review that part of their earlier decision.The Industrial Tribunal granted her application for a review but, having reviewed their earlier decision, reaffirmed it save that they awarded Mrs Banks a basic award in the sum of £2,376.92 but made no order on the basis that that sum had been paid by the employers prior to the hearing of the review. They note in paragraph 4 of their decision that:
"Mrs Banks was under the impression that the application for review was made by the Tribunal of its own motion whereas in fact it was made by the [employers]..."
That is a reference to the application for a review heard on 17 October.They noted that she also complained that she was not given an adequate period of time in which to consider the employers' application for a review and continued:
"In view of the fact that upon hearing the review the original finding in Mrs Banks' favour was confirmed, it is hard to see how she could have suffered any prejudice as a result. It is true that the review hearing did cover much the same ground as the remedy hearing, but it is important for Mrs Banks to bear in mind that the object of the review and the remedy hearing are different. The respondents' application for review was to overturn the finding of unfair dismissal whereas the remedy hearing was to establish the correct amount of compensation to be awarded to Mrs Banks."
They turn to the main points of her application for a review, concluded that there had been an oversight in not making her a basic award, which they corrected, but then continued:
"So far as the consultation point is concerned, Mrs Banks says that consultation would have made a difference. It is important to bear in mind that an application for review is not an opportunity to rehearse the evidence or indeed to have a second bite at the cherry and we are bound to say that nothing that we have heard this morning makes us think that the interests of justice (that being the only relevant ground) require us to vary our original decision. We note that the applicant does not agree with it, but of course that is not the same thing as the interests of justice requiring a review."
The Notice of Appeal in this case was received by the Employment Appeal Tribunal (the EAT) on 6 April 1998. It purports to be an appeal against the decision of the Tribunal on 17 October which was promulgated on 14 November 1997 and against the decision on 9 February promulgated on 26 February 1998. A Notice of Appeal in relation to the first decision is, therefore, 101 days out of time and in respect of the second decision it was within time. It was in relation to the Appeal against the earlier decision that the Registrar's order was made.I have now to consider the application for an extension of time. The case, as advanced by Mrs Banks - as I understand it - is that when she had received the first decision she considered that she had no option but to seek a redress either through a review process or through an appeal. Since the review process was embarked upon, and since the Tribunal indicated, in December, that her application for a review had been granted, she did not think it necessary to lodge an appeal against the decision. She points out that it was only after the 42 day period for submitting an appeal had passed when it appears that the Tribunal changed their mind about whether to grant her application for a review, and she says:
"Bearing in mind that the review was a little more than one week away I obviously faced a very difficult situation. I was now too late to pursue the appeal route and I felt that I had no option but to attend the review under protest and, if this failed to address my concerns, then submit an appeal within 42 days of the issue of the extended reasons. This is what I was forced to do."
She refers to the fact that she is an unrepresented lay person who is unable, confidently, to determine which aspect of the Regulations are relevant to the conduct of the Tribunal hearings and what arrangements were breached concerning her case. She felt that the Industrial Tribunal had failed to take reasonable care of the arrangements for dealing with her case and she has in mind, I think, the letters which apparently conflict with one another, sent in December 1997 and January 1998 and she contends that this is unfair and unjust.I apply the law as it is stated in United Arab Emirates v Abdul Gafar . The first question is, what is the explanation for the delay in filing a Notice of Appeal? As I understand it, it is not suggested that Mrs Banks was unaware of there being a 42 day time limit for an appeal. Indeed, as I read her written skeleton argument it is clear that she was saying that she felt she either had to apply for a review or appeal and, that by applying to the Tribunal, she would know within the 42 period whether her application for a review had been granted.The Tribunal decisions are accompanied by an explanatory leaflet which makes it plain to disappointed litigants what rights they have to apply to an Industrial Tribunal for a review or to raise an appeal to this Court. The leaflet is expressed in plain terms and it makes it absolutely clear that the mere fact that a person is seeking a review of a Tribunal's decision is not a good reason for not lodging a Notice of Appeal to the EAT. It seems to me unfortunate that Mrs Banks cannot have read the leaflet with the care which it deserved. It is, as I have said, written in plain English and it is designed to be used by people who do not have the opportunity to be represented or who decide to represent themselves. It is our experience in this Court that most litigants, even those who are unrepresented, fully understand their obligations in relation to getting their appeal to the EAT in on time.I am not satisfied that any proper explanation has been provided by Mrs Banks as to why she did not lodge a Notice of Appeal against the first decision of the Tribunal concerned, namely, that promulgated on 14 November 1997. Lodging a Notice of Appeal is not an expensive step to take, it preserves the party's position and, no doubt, the appeal would have been held in abeyance until the application for a review had finally been determined. It seems to me, therefore, that what I have been told does not excuse the delay in submitting the Notice of Appeal in this case. I do not consider that the confusion which was caused by the Industrial Tribunal letters, to which I have referred, has any bearing on the point at issue. Had Mrs Banks addressed her attention to the leaflet then, no doubt, she would have been in time whatever the Industrial Tribunal had chosen to say to her about the application for review which she had sent to them. That being so, the appeal, in my view, should be dismissed.