MR P C STUBBINGS v THE MINISTRY OF DEFENCE [1999] UKEAT 494_99_2109

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 494_99_2109

Case No Appeal No. PA/494/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR P C STUBBINGSAPPELLANT

THE MINISTRY OF DEFENCERESPONDENT

Before

His Honour Judge Peter Clark

Date 21 September 1999

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK : The appellant, Mr Stubbings, joined the Ministry of Defence Police on 4th June 1973. He presently holds the rank of Inspector.

[2]On 6th November 1997 he presented an Originating Application to the Exeter Employment Tribunal raising two complaints:(1) a complaint of unlawful deductions from his wages in respect of rent allowance whilst living away from home ["the expenses claim"];

(2) a declaration as to his particulars of terms and conditions of employment ["the particulars claim"].

[3]The matter came before an Employment Tribunal sitting at Plymouth and chaired by Mr B E Walton on 6th January 1998.

[4]By a decision with extended reasons ["the first tribunal decision"] promulgated on 19th January 1998, that tribunal:(1) dismissed the expenses claim; and

(2) found that the respondent had failed to provide a statement of terms and conditions of employment to the appellant. No further order was made on the particulars claim, but the parties were given leave to refer that matter back to the Employment Tribunal for further findings.

[5]Against the tribunal's decision to dismiss the expenses claim only, the appellant appealed to the EAT ["the first appeal"]. On 20th May 1998 a division on which I sat dismissed that appeal –

EAT/415/98

– for the reasons given in the judgment which I delivered on that day.

[6]Mr Stubbings then referred the particulars claim back to the Employment Tribunal. That further hearing took place before the same tribunal chaired by Mr Walton on 29th September 1998. By that date, so the tribunal found, the respondent had supplied adequate particulars to the appellant, namely those set out on page 84 of the bundle then before the tribunal. An application by the respondent for costs on that occasion was dismissed. The tribunal's further decision ["the second tribunal decision"] was promulgated with extended reasons at the appellant's request on 1st October 1998.

[7]Against the tribunal's second decision Mr Stubbings again appealed to the EAT –

EAT/1393/98

. That second appeal came before a division presided over by Judge Levy QC for preliminary hearing on 12th March 1999. On that occasion the appellant was represented by Counsel, Mr Chapman, under the ELAAS pro bono scheme.

[8]I see from the judgment given by Judge Levy on that day that Counsel sought to reopen the expenses claim argument which had been disposed of by the first tribunal and the first appeal. It was pointed out by the EAT that the expenses claim was not the subject of the second appeal. Counsel took instructions from Mr Stubbings and as a result the second appeal was withdrawn.

[9]Mr Stubbings tells me today that it was made clear to the EAT on that occasion that a further Notice of Appeal would be lodged, coupled with an application for extension of time for appealing. Such a document was then, I am told, drafted by Mr Chapman and is dated 20th April 1999. It appears to have been lodged on 26th April 1999. I shall call this "the third appeal". It has been given the number – PA/494/99.

[10]Paragraph 3 of that Notice states:

"The Appellant appeals from the decision of an Employment Tribunal sitting at Plymouth, Devon on 06 January 1998 and 29 September 1998 that the Appellant had been provided with accurate particulars of his employment with the Respondent pursuant to sections 4 and 11 of the Employment Rights Act 1996."

The thrust of the complaint in that Notice is that neither at the first Employment Tribunal hearing on 6th January nor at the second on 29th September 1998 did the tribunal determine what were the appellant's particulars of employment with the respondent, whether adequately or at all.

[11]The appellant recognising that his third appeal was made well outside the 42 day limit for appealing both the first and second tribunal decisions, sought an extension of time for appealing on the basis that at the first tribunal hearing no determination was made of the matters raised by him under ss. 4, 11 and 12 of the 1996 Act. Then, at the second tribunal hearing, he contends that although the accuracy of the particulars issued by the respondent was not before the tribunal the tribunal did make assertion about the same in the second decision reasons. He was therefore confused about which tribunal decision to appeal. He appealed the second decision in good time. He asserts that at the preliminary hearing held in the second appeal on 12th March 1999 he indicated that he would serve a fresh Notice of Appeal and apply for an extension of time as he has told me today.

[12]The respondent opposed the application for an extension of time on the grounds set out in a letter to the Registrar dated 7th May 1999. The respondent does not appear before me today but relies on those written representations in resisting this appeal.

[13]Having considered representations by the parties, including a further written submission by the appellant dated 22nd May 1999, the Registrar, by Order dated 3rd June refused the appellant's application to extend time for appealing. Against that order he now appeals to me.

[14]In a conspicuously restrained submission before me today, Mr Stubbings emphasises that he has throughout acted with good faith, but that since 1990 he has been locked in dispute with his employers over his terms and conditions of employment and the matter is still not resolved today.

[15]However, I have to deal with the narrow question as to whether or not the Registrar was entitled to dismiss his application for an extension of time for appealing.

[16]It seems to me that the facts here are self-evident. Two complaints were raised in the Originating Application. One was finally dealt with at the first tribunal hearing; the other was not finally resolved.

[17]As to the matter which was dealt with, that is the expenses claim, Mr Stubbing instituted an appeal to this tribunal and that appeal was dismissed at the preliminary hearing on 20th May 1998. There has been no further appeal to the Court of Appeal and that is the end of the matter.

[18]So far as the particulars complaint is concerned, no final resolution was made by the tribunal at the first hearing in January 1998, but a final resolution was made at the hearing in September 1998. Against that final resolution the appellant again appealed by his second appeal. That matter came before Judge Levy's Appeal Tribunal on 12th March 1999 and the appeal was withdrawn. In these circumstances, I can see no basis whatsoever for allowing an extension of time to bring a third appeal when both tribunal decisions under appeal have already themselves been the subject matter of determined appeals.

[19]It is not simply that the appeal is considerably out of time. It is, it seems to me, an attempt to have a further bite of the cherry when the appeal process has already been exhausted. There must be finality of judicial decision at some stage. In my view, that stage has been reached in relation to these two tribunal decisions. In my judgment the Registrar was right to dismiss the application for an extension of time for appealing. I in turn, dismiss the appeal against her order.