FAME RECRUITMENT CONSULTANTS v MRS Z SULEMAN [1999] UKEAT 788_99_0712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 788_99_0712Case No Appeal No. PA/788/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
FAME RECRUITMENT CONSULTANTSAPPELLANTMRS Z SULEMANRESPONDENT
Before
Mr Justice LindsayDate 7 December 1999
[1]APPEARANCES For the Appellants MRS ABRAHAMS (Representative) For the Respondent THE RESPONDENT IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : I have before an application in the matter Mrs Z Suleman v Fame Recruitment Consultants Limited . What is before me today in an appeal by Fame against the Registrar's Order refusing an extension of time in which to lodge a Notice of Appeal. The Notice of Appeal that was received was 14 days out of time. Both sides have been in front of me today. Fame represented by a director, Mrs Abrahams, and Mrs Suleman in person. I need to say a little about the chronology of the matter. On 27th January 1999 Mrs Suleman lodged an IT1 form of complaint. That was met by an IT3 on behalf of Fame.[2]On 22nd April 1999 there was a one day hearing in front of the tribunal. Mr Abraham, presumably another director represented Fame, and Mrs Suleman was in person.[3]On 14th May 1999 the decision was sent to the parties. The decision, so far as is relevant, was that Fame was obliged to pay Mrs Suleman £728.52.[4]On 24th May 1999 a letter bearing that date was sent from Fame to the Employment Tribunal indicating that Fame wished to appeal. The letter begins:
"I am in receipt of the above decision and I would like to appeal against it for the following reasons: …"
[5]On 1st June 1999 a letter, exactly the same as 24th May letter, was faxed to the Employment Tribunal. (I have not got a copy of that fax but it is referred to in another letter).[6]On 24th June 1999 the case officer at the Employment Tribunal asked for instructions from the Chairman at the Employment Tribunal in relation to the letter of 24th May 1999.[7]On 25th June 1999 the six weeks period during which a Notice of Appeal might be lodged expired. The six weeks begin when the decision is sent to the parties and not when the parties do receive it, so time ran from 14th May 1999 and therefore expired on 25th June 1999.[8]On 2nd July 1999 the tribunal answered Fame's letter of 24th May 1999 which it certainly had received not later than 1st June 1999. The tribunal began by apologising for the delay in the response. The letter said that the matter had been forwarded to the section supervisor who had only located the file recently.[9]On 7th July 1999 a Notice of Appeal was received from Fame. In paragraph 6 where the space is described as:
"The grounds upon which this appeal is brought are that industrial tribunal erred in law in that ( here set out in paragraphs the various grounds of appeal ):-"
It has been completed simply with "N/A" - the position being, presumably, that at that stage the person acting for Fame was not in a position to specify what the grounds were.[10]On 15th July 1999 the Employment Appeal Tribunal replied to that Notice of Appeal. I have not seen the letter but the likelihood is that it took the usual form of indicating that the Notice of Appeal was of time and that it could not therefore be accepted and that therefore an application for an extension of time would have to be made.[11]On 21st July 1999 Fame wrote to the Employment Appeal Tribunal asking for an extension of time for the lodging of the Notice of Appeal.[12]On 26th July 1999 the respondent, Mrs Suleman, having been approached by the Employment Appeal Tribunal, as is usual, indicated grounds for resisting any granting of an extension of time.[13]On 13th August 1999 Fame wrote a letter to the Employment Appeal Tribunal indicating that it had not been aware that its appeal should have been directed to a different address to that at which the original hearing had taken place.[14]On 16th August 1999 the learned Registrar refused an application for an extension of time. The order of that date says:
"UPON the application of the Appellants by letter dated the 21st day of July 1999 for an extension of time in which to enter a Notice of Appeal AND UPON consideration of the aforesaid letter and a facsimile from the Respondent dated the 2nd day of August 1999 and a further letter from the Appellants dated the 13th day of August 1999 IT IS ORDERED that the aforesaid application be refused"
[15]Finally, in the chronology, on 13th September 1999 the Employment Tribunal wrote a letter to the EAT explaining some of the gaps in the chronology and why they had taken place.[16]I have heard both sides and both have tended to address the merits of appeal rather than the question of whether there should be an extension of time. The merits or demerits of the appeal play only a very small part in any consideration of whether there should be an extension of time because if it were otherwise one would have to hear the appeal in order to judge whether the appeal should be heard, which would be logically unsatisfactory.[17]Here the strongest feature, as I see it, in favour of Fame is the way in which the Employment Tribunal delayed. It is the case that when a decision is sent to the parties it is accompanied by a modest booklet or sheet which explains, amongst other things, how an appeal can be prosecuted if it is wished to appeal. Although I have not got the booklet in front of me, I am confident that it draws a distinction between the Employment Tribunal where the case was heard and the Employment Appeal Tribunal where any appeal would have to be directed. It was undoubtedly a wrong step on behalf of Fame to write, as it did, on 24th May 1999 to the Employment Tribunal indicating a wish to appeal. Fame should, of course, have written instead to the Employment Appeal Tribunal. But, for all that, it seems to me, that Fame, having written to the Employment Tribunal, could reasonably expected to have been told that it had gone wrong sooner than it was. The Employment Tribunal had received Fame's communication not later than 1st June 1999 and yet no reply was given until 2nd July 1999. Had Fame been told that it was necessary to lodge an appeal with the EAT (and not merely to indicate a wish to the Employment Tribunal) within a reasonable period, say 14 days from the 1st June, then I would expect the Notice of Appeal would then have been lodged by, say, 17th June, which would have been well before the expiry of the 42 days on 25th June 1999. After all, once Fame was clearly told that it was to the EAT that it had to appeal, which occurred on 2nd July 1999, it managed to lodge a Notice of Appeal within five days, namely by 7th July 1999. If the Employment Tribunal had not taken the unreasonably long period it took in consulting the Chairman and then writing to tell Fame that it had, in effect, appealed to the wrong body, I expect that there would have been an appeal in time. It is, perhaps, not a very compelling excuse for delay, but there were here parties in person, unprofessionally advised, indeed totally unadvised as it would seem. In that circumstance, one can be a little more lenient than might otherwise be the case.[18]Accordingly, I shall extend time for the lodging of a Notice of Appeal until 9th July 1999 and that therefore validates the Notice of Appeal which bears the date 7th July 1999 and which is already stamped as having been received on 9th July 1999.[19]That is not an end of the matter. It is totally unsatisfactory for the Notice of Appeal not to have the grounds specified. I mentioned earlier that at the moment it simply says "N/A" – "not applicable" presumably. The Notice of Appeal must be amended to specify detailed grounds relied on within 14 days of today.[20]It must not be thought that my granting leave in the way that I have is any form of indication that the appeal has any chance of success. I have not been concerned at all with the prospects of the appeal but simply with the procedural subject which I have so far discussed. It must not be thought that my letting the matter go forward, as I am doing, is any indication whatsoever of any prospect of success. Moreover, it must be borne in mind that an appellant can fail on appeal and can in consequence be made to bear costs where the application has been unreasonable or vexatious or otherwise falling within Rule 34 of the Employment Appeal Tribunal Rules. It must not be thought that my letting the matter go forward is any indication that Fame will not be liable to costs if it goes further. I cannot over-emphasise that I have only been concerned with the procedural aspects and not with the merits or demerits of the appeal itself.[21]Accordingly, I allow the appeal. I extend time for the lodging of a Notice of Appeal to 9th July, but the Notice of Appeal must be amended to specify detailed grounds relied on within 14 days of today's date. If it is not, the Notice of Appeal will, without further order, be struck out.