MRS ABSHOLT (FORMERLY KNOWN AS MRS N SINAWI) v HAMPSHIRE CONSTABULARY [2000] UKEAT 0705_00_0310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 0705_00_0310Case No Appeal No EAT/PA/0705/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS ABSHOLT (FORMERLY KNOWN AS MRS N SINAWI)APPELLANTHAMPSHIRE CONSTABULARYRESPONDENT
Before
Mr Justice LindsayDate 3 October 2000
[1]APPEARANCES For the Appellant MRS N A SINAWI C/o M J MURPHY 86 Roberts Way Barton Stacey Winchester Hants SO21 3RU For the Respondent MR GARY SELF (of Counsel) Mr Graham Love (Personnel Officer) Recruitment Personnel Section Southern Support Headquarters Hamble Lane Hamble Southampton SO31 4TS MR JUSTICE LINDSAY (PRESIDENT) I have before me an appeal by Mrs Sinawi, whose name has since changed to Mrs Absholt, in the matter Sinawi –v- The Hampshire Constabulary . Today Mrs Sinawi appears by a lay representative, Mr Murphy, who is in fact her father, who has the benefit of having been a clerk in a solicitor's offices for a number of years and is broadly familiar with Employment Tribunal and Employment Appeal Tribunal procedure although I would not want to lay too much emphasis on how deep his knowledge is. He is, as I have said, appearing for Mrs Sinawi and Mr Self appears for the Hampshire Constabulary.[2]The appeal is against the Registrar's refusal to extend time for lodging a Notice of Appeal. The chronology is that on 17 March of this year there was a hearing at the Employment Tribunal before a three person panel and on 20 April, so it appears, the Decision and Extended Reasons were sent to the parties. The complaint made by Mrs Sinawi was dismissed.[3]The front page, and it might have been the only page of one of one or two documents, is headed "Unanimous Decision" has a footnote:
" Decision sent to the parties and entered in the Register on 20:04:00. The time for application for Review and (if the attached Reasons are in extended form) for Appeal runs from this date."
And then there was a signature, and it says "For Secretary of the Tribunals". It will be noted that the footnote suggests that the extended reasons were attached to the front page of the Unanimous Decision and that in that sense there was one compendious document sent. Mr Murphy commonly speaks of the documents as if there is one document "Unanimous Decision" and another document "The Extended Reasons". Whether that was the case I do not know because it cannot now be established whether they were stapled together or separate, but certainly the endorsement in the footnote on the front page does suggest that there was, in effect, one long compendious document, comprising Unanimous Decisions and Extended Reasons.[4]On the last page of the Decision, which was, as I have said, against Mrs Sinawi, it simply has a space for the signature of the Chairman and is signed by the Chairman, and there is nothing else on the last page as to the date of sending out. That, in a sense, conflicts with the usual printed notes which are sent out with a Decision and Extended Reasons, which say:
"The Notice of Appeal must be served on the Employment Appeal Tribunal within 42 days of the date on which the extended written reasons for the decision which is the subject of the appeal, were sent to you This date is shown on the last page of the document containing the extended reasons"
Well, of course, in this case it was not. The date was shown on the front page under the heading "Unanimous Decision" in the way that I have mentioned.[5]Mr Murphy says that he was concerned that he had not received anything in writing, giving the extended reasons, for some time after the hearing on 17 March. As I understand it, the panel on 17 March orally announced what the conclusion was going to be, but, of course, the parties awaited something in writing. Mr Murphy was concerned that he had not received anything and he says that he made contact with his correlative, so to speak, the person acting in relation to the matter at the Hampshire Constabulary who, at the time (and the precise date is not clear) confirmed to him that he, too, had received nothing. Mr Self accepts that it is likely that there was contact between Mr Murphy and the Hampshire Constabulary because frequent contact was made between them in relation to this and other cases and Mr Self also does not contest that the Constabulary did not receive their copy until 26 April.[6]On 26 April, says Mr Murphy, both he and his daughter, Mrs Sinawi, received the judgment. By 31 May it is quite clear that he had instructions from his daughter, although to say "instructions" perhaps would be to give the matter too formal a flavour. But certainly he had received a go ahead to launch a Notice of Appeal. He is unable to tell me when he asked his daughter for instructions or for some informal go ahead and he is unable to tell me when he got the go ahead, however informally it might be given. He can say that it must have been by 31 May because it was on that day that he turned to the matter of the preparation of the formal notice of appeal. In a letter that he wrote on 15 June, he said:
"Later, on 31 May 2000, having received instructions from the Applicant, and within what I believe to be a good time to submit the Notice of Appeal, I set out to prepare a formal Notice"
[7]On 1 June, the 42 days from the 20 April expired. On 2 June, the Employment Appeal Tribunal received a Notice of Appeal. It is not a short document. Whether it should have been is another matter but it has several pages of explanation of the points which it is sought to raise on the appeal if an appeal is permitted. It bears the date 1 June, and as I say it was received on 2 June. The Employment Appeal Tribunal, on 5 June took the point that that Notice of Appeal was out of time as if the correct starting point was 20 April, it manifestly was.[8]On 15 June Mrs Sinawi, by Mr Murphy, applied for an extension of time, claiming to have been misled by the fact that no date was given on the last page of the extended reasons and claiming also that to have lodged the Notice of Appeal on 2 June was not a lodging out of time. That latter argument has since been abandoned, and Mr Murphy accepts that it was an arithmetical error on his part.[9]On 4 July, the Employment Appeal Tribunal, having consulted the Respondents, as they normally do, to ask them whether they wish to oppose an extension of time, received the Respondent's opposition.[10]On 8 August, they received Mrs Sinawi's representative's answer to that opposition, and on 16 August the Registrar refused an extension of time. On 21 August, a phone call was received at the Employment Appeal Tribunal to say that Mrs Sinawi did, indeed, wish to appeal against the Registrar's Order.[11]The Employment Appeal Tribunal Rule 3 makes it quite clear that the 42-days run not from the date of receipt but from the date on which the decision was sent to the Appellant, and on the face of things, that was the 20 April. 42-days from that date expired on the last moment of the 1 June and nothing was received by way of a Notice of Appeal until 2 June, so plainly there is here a case where, on the face of things, the Notice of Appeal was out of time.[12]No enquiry seems to have been made yet, at any rate by Mr Murphy, of the Employment Tribunal to establish whether there could be any reason to doubt the sending out on the 20 April. He raises an argument that, as the 20 April was a Thursday, for the papers not to be received until the following Wednesday 26 April of itself suggests that they were not sent out on 20 April. But, first of all, independent of the point I am about to make, one has real doubts about whether one does disprove a sending on 20 th by proving there was no receipt until 26 th . But a further complication here is that both Friday 21 and Monday 24 were Bank Holidays, and of course, Sunday was the 23 rd . That might complicate the force, otherwise to be given, whatever the force might be, of an argument that receipt on 26 th of itself tended to disprove a sending on 20 th . But there has been no enquiry of the Employment Tribunal by Mr Murphy as to whether there was any reason to doubt 20 April.[13]Moreover, Mr Self makes the point that it is undeniable that, even if there was receipt not until 26 April, that provided ample time for the preparation of a Notice of Appeal, well before the expiry of time on 1 June, and, as has been powerfully said in both the well known United Arab Emirates –v- Abdelghafar case and as has been reiterated in the Court of Appeal in Aziz –v-Bethnal Green City Challenge Company Ltd :
"Parties who have decided to appeal are also strongly advised not to leave service of the notice of appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail (or getting the date wrong). That risk can be avoided by service of the notice of appeal with within the period."
[14]There was ample time between 26 April and 1 June for the preparation and Mr Murphy is not in a position to blame his client, so to speak, his daughter, for withholding instructions or encountering difficulty in giving them because he cannot tell me when he asked for instructions or when he got them.[15]Moreover, the claim that he was misled by the references to a date not being on the last page of the extended reasons and the claim that the endorsement on the first page was totally overlooked, is, I am bound to say, extremely hard to credit. Mr Murphy is a man of intelligence; he has demonstrated to me the care that he takes in argument and I find it very difficult to accept that the quite clear footnote (which, I should say is not in the sort of small, tiny print that the word 'footnote' sometimes suggests but is in perfectly legible typescript) was wholly overlooked. And, moreover, if, as he says, he was relying on the absence of any date on the last page, the natural, and as he has accepted, sensible thing to do would have been to ring up the Employment Tribunal and say "Look here, I am meant to refer to the last page of the document as providing a date there is no date on the last page; what am I to do? What is the proper date?". That, it seems to me, would have been the sort of enquiry which a man of Mr Murphy's intelligence and commitment would have pursued, but there was no such enquiry; and moreover, the case is presented today without any evidence, properly-so-called, at all. There is no evidence from Mr Murphy, in the sense of a sworn affidavit, nor from his daughter, nor from his daughter's prospective husband, who might have something to say on the subject. Indeed, it looks as if there was a deliberate decision that it was safe to leave things to the last moment. In the letter, to which I earlier made reference, Mr Murphy says:
"It was only when I set out to prepare the Notice of Appeal on 1 st June …….." in other words, the very last day of the 42-days, "……. that I noticed that on a single page document headed "
Employment Tribunals - Unanimous Decision" that at the bottom of that page appears a notice which reads:- "Decision sent to the parties and entered on the Register on 20-04-00 " In other words, Mr Murphy asked me to accept that, notwithstanding his intelligence and the care with which he is devoting to the matter, he did not truly read the document, (and, as I mentioned earlier, it seems to be one compendious document, with the two parts attached together) or did not bother to read them with full care, until 1 June. Going on, he says:
"I was misled by the inaccurate reference in the document sent to me by the Tribunal"
Well, I have mentioned already the difficulty of accepting that, and then he goes on:
"Having observed this footer note (sic)….. I then calculated that time would not start to run and include 20 th April on the basis that the first full day after the entry in the register and the "sending" of the document must, rationally, be the following day, 21 st April 2000. Accordingly, I decided that it would not be necessary to send the Notice of Appeal by fax on 1 st June 2000 but that it would be adequate to send it to arrive on 2 nd June 2000. "
[16]Well, the position is that, at the moment, the date 20 April is not disproved as the date of the sending out, and the 42-days expiry from that, therefore, is not disproved as being midnight on 1 June. Those who leave things to the last minute, run the risk that I have drawn attention to by reference to the citation in Abdelghafar and in Aziz.[17]However, I am troubled by one aspect, and that is, as I mentioned earlier, Mr Murphy was, at an earlier period, he says, troubled by the fact that nothing had been received in writing from the Employment Tribunal and that he had spoken to the other side, the Constabulary, before anything was received and had verified that they, too, had received nothing and also that he then confirmed, as I have understood it, that the other side did not receive anything until 26 April either.[18]I revert to the point about how far, if at all, a non-receipt until the 26 April disproves an alleged sending on 20 April. Without some detailed knowledge of the practice of the Post Office it is hard to take an informed view on the subject. What I have decided to do, which is a course that I have explored with the parties, is to give a last opportunity to Mr Murphy as follows.[19]What I propose to do is to extend the matter for 21 days. If, within that period, Mr Murphy swears and files and serves on the Constabulary (when I say "files" I mean sends to the Employment Appeal Tribunal) an affidavit showing that the Employment Tribunal itself accepts that the Decision and Extended Reasons may not have been sent out on the date indicated, namely 20 April of this year, or may not have correctly addressed the papers to the Appellant or her representative on that date, then, if such an affidavit is so sworn and filed, the matter can thereafter be restored for further argument.[20]But if, within that period, no such affidavit is received by the Employment Appeal Tribunal and served on the Constabulary then, at the expiry of the 21 days, without more, the appeal would be dismissed, in other words, without any further attendance by either side.[21]This Mr Murphy accepts as a sensible and fair solution to the problem as it has emerged to be and Mr Self also does not oppose it; it gives Mr Murphy a last chance to disprove the 20 April or to surround the 20 April, as the sending date, by such doubt as justify an extension of time. I think that although the course I propose is unusual it is not unfair in all the circumstances and accordingly I stand the matter for 21 days in the manner that I have indicated.