MS S A MAIDMENT v (1) MEDWAY COUNCIL (FORMERLY MEDWAY TOWNS COUNCIL) (2) INSTITUTE OF LEISURE & AMENITY MANAGEMENT SERVICE [2000] UKEAT 0008_00_2711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 0008_00_2711Case No Appeal No. PA/0008/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS S A MAIDMENTAPPELLANT(1) MEDWAY COUNCIL (FORMERLY MEDWAY TOWNS COUNCIL) (2) INSTITUTE OF LEISURE & AMENITY MANAGEMENT SERVICERESPONDENT
Before
Mr Justice LindsayDate 27 November 2000
[1]APPEARANCES For the Appellant The Appellant in person For the Respondent MS ALISON RUSSELL (of Counsel) Instructed by: Messrs Argles Stoneham Burstows Solicitors 12 Mill Street Maidstone Kent ME15 6XW MR JUSTICE LINDSAY (PRESIDENT) I have before me the appeal of Sally-Anne Maidment in the matter Maidment -v-(1) Medway Council (formerly Medway Towns Council) (2) Institute of Leisure & Amenity Management Service (which Second Respondent has, as it seems, fallen away).[2]Ms Maidment appeals against the Registrar's refusal to extend time for her Notice of Appeal. This morning Miss Maidment has appeared in person and Medway by Ms Russell; the Institute has not appeared.[3]Ms Maidment presented an IT1 complaining against Medway Council about sex discrimination. When the papers came to be compiled for the purposes of the appeal, the Employment Tribunal indicated that it had not kept a copy of the IT1 because it was lodged so long ago, but Ms Russell has shown me a copy this morning, and it does, on the face of things, appear to relate only to sex discrimination.[4]In July 1998 there was a two day hearing, and one day in chambers at Ashford, and on 13 August 1998, the decision of the Tribunal, which was under the chairmanship of Miss V G Wallis, was sent to the parties. I think it is necessary to give a few quotations from that decision to give a fuller impression of what the Tribunal was dealing with. The decision itself was as follows:
"The unanimous decision of the Tribunal is that the Respondent did not unlawfully discriminate against the Applicant, either directly or indirectly, for the reasons set out below, and her claims thereafter fail and are dismissed."
In the course of the decision, at paragraph 15, one finds this:
"Ms Maidment decided to apply for the post of Director of Leisure, Arts and Libraries. She had previously worked for Rochester upon Medway City Council in 1983 and felt that she had been passed over by the then Chief Executive at Rochester"
A little later, at paragraph 16:
"At the time she decided to apply for the post of Director of Leisure, Arts and Libraries, Ms Maidment was working again at Rochester upon Medway City Council"
A little later:
"There is clearly a dispute between Ms Maidment and the then Rochester Council, in which Medway Council had become involved as the successor authority to Rochester, about whether or not she was an employee or a consultant, and whether or not she was paid."
A little later, in paragraph 16:
"Without specific evidence on this point, and given the reluctance of the Applicant to say very much about the situation, we are unable to make any findings about this issue."
And in paragraph 18:
"The appointments panel then met on 2 September 1997 to consider the applications for the Director of Leisure role."
And then the process is described at which selection took place, at the bottom of paragraph 18:
"Clls Mrs Shaw voted for Ms Maidment's application, but a majority of the panel members decided that her application did not demonstrate experience at a suitably senior level within Local Government."
In paragraph 20 the Tribunal said:
"On balance, we are satisfied that the appointments panel used the person specification as the selection criteria for the shortlist throughout their shortlisting process."
In paragraph 32, the Tribunal said:
"With regard to her application for the post of Director of Leisure, Arts and Libraries, we listened carefully to the questions put by Ms Maidment to the Chief Executive with regard to her level of experience and expertise, and how this could be compared to the shortlisted candidates. We found that there were weaknesses in Ms Maidment's application identified by Ms Armitt which, we are satisfied, accounted for the fact that she was not placed on the shortlist."
Under the heading of "Conclusions", in paragraph 46, the Tribunal said:
"We were satisfied that Ms Maidment's application for the post was treated in exactly the same way as the 48 other applicants" and a little later: "
We were satisfied that the appointments panel had undertaken its responsibilities properly, was sufficiently trained for the purpose and did not make any of its decisions with regard to Ms Maidment's gender. Consequently, we concluded that Ms Maidment had not suffered less favourable treatment on the grounds of her sex." That, I hope, gives some measure of the sort of the dispute that had taken place at the Tribunal at Ashford, over those three days - two days and one day in Chambers - under the chairmanship of Miss V G Wallis.[5]The decision having been sent to the parties on 13 August 1998, it was on 24 September 1998 that the 42 days from that sending-out expired and hence the prescribed period for the lodging of a Notice of Appeal expired. A Notice of Appeal was received on 22 December 1999 - one notices the remarkable interval of time between 24 September 1998 and 22 December 1999. Ms Maidment says that at some stage, probably in December 1999, at a time when she was distressed, she made contact with the EAT and that some spokesperson said, on behalf of the EAT, that it was possible to lodge a Notice of Appeal and accompany it with a request for an extension of time, or at any rate, that an extension of time might validate, if successful, a Notice of Appeal otherwise out of time, and it was that conversation, says Ms Maidment, which triggered her making the decision to lodge a Notice of Appeal, which she did on 22 December 1999.[6]On 6 January 2000, the Employment Appeal Tribunal pointed out that the Notice of Appeal was over 14 months late, and asked whether Ms Maidment wished to apply for an extension of time and on 19 January, the Employment Appeal Tribunal received a very long letter from Ms Maidment which made a number of points. She said that there had been a recent decision in another court - the County Court at Reading, before His Honour Judge Ball - that had held that she was an employee of Medway. But it is hard to see the relevance of that to the claim that was being made for sex discrimination in the way that I have outlined it.[7]The letter said, also, that there was the emergence of a witness who was able to help her, but the witness was not identified, and it is far from clear what the witness would have indicated he or she would have said, and how relevant it would have been. She said that it had only recently come to her knowledge that there had been serious errors of law on the part of the Tribunal, but it is hard to see how they could not have come to her mind earlier, and within the 42 day period. And there were many allegations going to the merits or supposed merits of her position. That, as I say, was January 2000.[8]On 9 February the Employment Appeal Tribunal asked the Respondent for its views and on 21 February Medway, by its solicitors, made the point, amongst others:
"We would submit that the Applicant had adequate time to seek advice in connection with the decision and to submit a Notice of Appeal to the EAT within the time allowed. As it is, almost a year and half has elapsed since the Employment Tribunal promulgated its decision"
And they invited the Employment Appeal Tribunal to dismiss the application.[9]On 12 March 2000, Ms Maidment made further submissions. On 20 March, the Registrar made her Order and it says this, amongst other things:
"AND UPON DUE CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS IT IS CONSIDERED that there has been shown no exceptional reason why the appeal could not have been presented within the time limits laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993. IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused."
[10]On 27 April the EAT wrote to Ms Maidment saying this:
"I recall receiving a telephone message from you on 27 th March 2000 where you stated that you wished to appeal against the Order sealed on the 23 rd March 2000. I wrote to you on 28 th day of March confirming that I had received your telephone message but that I needed this confirmed in writing; to date I have not received your confirmation in writing and therefore I am unable to proceed with your appeal. May I please have confirmation within seven days from the date of this letter."
And on 10 May, the Employment Appeal Tribunal received Ms Maidment's answer, bearing the date 2 May, which said, amongst other things:
"It is outrageous that Medway Council and the Institute of Leisure and Amenity Management Services can get away with the injustice they have caused against me and the mistakes made by courts in trying to deal with the issues. ..." and: "
Please can the High Court Judge decide fairly once and for all so that I can clear up the outstanding issues, the councils can be told to stop their victimisation tactics and then we can all move on once again in a positive rather than a negative way of life?" That was received on 10 May, and on 15 November, there was a further letter from Ms Maidment, received on 16 November. Well, here the delay is extraordinary. It runs, as I have indicated, from 24 September 1998 to 22 December 1999, and when a delay is as long as that, it plainly needs a very convincing explanation to be given if there is to be a chance of receiving an extension of time.[11]This is the second case this morning I have had, concerning Ms Maidment. I did, in the other case, deliver a small judgment. I will not set out the principles to which I referred, in that case, once again, but invite that case to be borne in mind in this case.[12]I have not been able to find any acceptable reason for the very long delay. Judge Ball's decision in the Reading County Court does not seem to me to be a decision which reflects in any material way on the decision of this Tribunal, that there had not been sex discrimination.[13]As I indicated in the citations from the decision sent to the parties on 13 August 1998, the emergence of a witness can, in some cases, lead to a re-opening of a case, and hence to an extension of time, where appropriate, but the test for allowing a witness to be added late - and the later it is, the harder it is to satisfy the test - is set out in a well known case called Ladd -v- Marshall and here I am given insufficient material to regard anything that this unidentified witness might say as sufficient to see this case as a case proper to be re-opened, notwithstanding that it is so late.[14]Ms Maidment has touched on medical considerations, but I have no medical evidence, and it is quite plain, as Ms Russell points out, that from time to time, throughout the period since the decision, Ms Maidment has been fully able to compose lengthy and reasoned letters and that if she had instead turned her attention to a Notice of Appeal, then, even without assistance from professionals, she would no doubt have been able to compose one. It is not possible to attach weight to medical considerations as explanation for the delay.[15]It is a sad case. There is no doubt at all that Ms Maidment has been distressed. She has been distressed even this morning. She feels very strongly that justice has not been done. But I cannot do what Ms Maidment calls "justice" simply because she calls it "justice": I have to do justice according to law and the principles here are set out in the Abdelghafar case to which the Registrar referred, and also, more recently, in another case, Aziz -v- Bethnal Green where the relatively strict approach taken by the Employment Appeal Tribunal in relation to time extensions and Notices of Appeal met with no disapproval, indeed some approval, from the Court of Appeal.[16]Accordingly, although I am very conscious of the fact that Ms Maidment is distressed in relation to her litigation, I do not feel it possible to extend time for this particular Notice of Appeal, after such long and unexplained delay, or at rate, delay which has received no satisfactory explanation, and accordingly I dismiss the appeal. Medway Council applies for costs against Ms Maidment, Ms Maidment's application for an extension of time having failed. Ms Russell says that the application was unnecessary. Well, strictly speaking, there was no way in which Ms Maidment could attain the object that she desires, namely having her Notice of Appeal received, without making this application, and in that sense the application was necessary.[17]It is not said by Ms Russell on Medway's behalf that the application was improper or vexatious. Has there been unreasonable delay, or other unreasonable conduct in bringing or conducting the proceedings? Well, Ms Maidment has conducted the proceedings herself, and it may be said that at points she has been irrelevant, but certainly no costs can be attributed to the extra 10 minutes or so that might have been spent in looking at, or listening to, arguments which, strictly speaking, were irrelevant.[18]Plainly there has been unreasonable delay in the case, because I was concerned with a Notice of Appeal of 22 December 1999 against a decision sent to the parties on 13 August 1998, buy that is not delay in conducting the proceedings, namely the appeal against the Registrar's Order of 20 March. There was no significant delay in launching an appeal against that.[19]Accordingly, although undoubtedly it can be argued that Ms Maidment is seeking to go beyond a mere appeal against the decision of the Employment Appeal Tribunal in question, and seeks to have some grand re-opening of issues, I cannot say that she is not concerned, within that grand re-opening, with an appeal against the decision at Ashford: it was not, in other words, a collateral purpose that she was pursuing, but the principal purpose of being able to appeal against the decision of Ashford, as part of a grander scheme.[20]All in all, I do not think it is appropriate to make an Order of costs against Ms Maidment and I might add, although this has not affected our judgement on the question of whether an Order for costs should be made or not, that she tells me that she can no longer afford a solicitor, having been able to afford one earlier, and is now unemployed and cannot get legal aid. So that whereas I am not making an Order in Medway's favour, it would seem that in monetary terms they would probably have lost next to nothing in any event. But, confining myself to whether there should be an Order for costs or not, I say that there should be no Order for costs.