MR F DAY v CRANE LIMITED T/A CRANE FLUID SYSTEMS [2000] UKEAT 1012_99_0702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1012_99_0702Case No Appeal No. PA/1012/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR F DAYAPPELLANTCRANE LIMITED T/A CRANE FLUID SYSTEMSRESPONDENT
Before
Mr Justice LindsayDate 7 February 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR S DEVONSHIRE (of Counsel) Messrs Prettys Solicitors Elm House 25 Elm Street Ipswich IP1 2AD MR JUSTICE LINDSAY (PRESIDENT) : this is an appeal by Mr Day, who was the applicant below, against the Registrar's refusal to extend time for the lodging of a Notice of Appeal. On 10th February 1999 Mr Day lodged his IT1 and it was given the case number 1500292/99. It was a claim for unfair dismissal.[2]On 21st, 22nd and 23rd June 1999 there was a hearing at the Employment Tribunal. Mr Day was represented by solicitors.[3]On 13th July 1999 the decision was sent to the parties. The decision was unanimous. It was as follows:
"1. The applicant was unfairly dismissed. 2. The applicant was neither dismissed on grounds related to union activity nor selected for redundancy on grounds related to union activities. 3. Terms of settlement having been reached between the parties by consent on the question of remedy all further proceedings are dismissed."
The decision, promulgated on 13th July 1999, bears the case number 1500292/99.[4]On 16th August 1999 Mr Day put his signature and put the date on a Notice of Appeal appealing against the decision of 13th July 1999. Under heading 6, which is printed as follows:
"The grounds which this appeal is brought are that the employment tribunal erred in law in that ( here set out in paragraphs the various grounds of appeal ):- Mr Day has written: "
The decision is/was peversed and not a true reflection of the evidence heard during the original trial."[5]On 24th August 1999 the time limited for appeal expired. In the meantime, Mr Day had sent that Notice of Appeal, to which I have just referred, not to the EAT but to the Employment Tribunal. He did that notwithstanding that in the ordinary way the decision of the Employment Tribunal would have been accompanied by the usual notes which indicate not only that the appeal to the Employment Appeal Tribunal but which even give the address to which an appeal should be sent.[6]On 26th August 1999 the Chairman at the Employment Tribunal directed that the Notice of Appeal should be sent to the EAT. On 7th September 1999, or it might be 10th September, the EAT received Mr Day's Notice of Appeal.[7]In the ordinary way the EAT then consulted the other side, in this case Crane Limited t/a Crane Fluid Systems, to find out what attitude they took to an application for an extension of time. They took the point that the proceedings had been brought to an end by compromise. They sent to the EAT a form of agreement that must have been lodged with or had been laid before the Employment Tribunal at the hearing in June 1999. It says:
"DAY -V- CRANE LIMITED AGREEMENT Crane Limited will pay to Mr Day's solicitors the sum of £7032 (seven thousand and thirty-two pounds) within 14 days of today (23/6/99) in full and final settlement of Mr Day's claims in case no. 1500292/1999."
It is signed "Counsel for Crane Limited" and "Solicitors for Mr F Day." Plainly that is the provision which the Employment Tribunal had in mind when they referred to the matter as having been settled. It was those terms of settlement that led to the remedy hearing being unnecessary and all further proceedings being dismissed.[8]On 30th September 1999, having had that response from Crane, the Registrar refused Mr Day an extension of time and on 4th or 5th October 1999 Mr Day appealed against the Registrar's refusal.[9]That is the chronological background to the matter.[10]Mr Day had sent his Notice of Appeal to the Employment Tribunal despite the clearest information on the accompanying notes that it is not to the Employment Tribunal but to the Employment Appeal Tribunal that an appeal should be sent if there is to be an appeal.[11]Mr Day is quite frank that it is ignorance that led to that mistake. He is in person, so there is perhaps a degree of tolerance to be permitted. But, for all that, the notes plainly say that the appeal should be to the EAT and he sent it to the wrong body and to the wrong address.[12]The leading case in this area Abdelghafar v United Arab Emirates [1995] ICR 63 indicates 'ignorance' is not a sufficient excuse. Abdelghafar also indicates that to a limited extent the merits of the case can be taken into account. They are seldom fully taken into account because one could all too easily embark upon a 'mini trial' to judge the merits of the appeal simply to decide whether there should be an extension of time granted for the appeal. But here two factors stand out. First of all, perversity is the only ground of appeal which is asserted. It is quite unexplained. It is at best an extremely difficult ground to run at an appeal level. So one starts off with a case which, on the face of things, is mounting an unexplained and very difficult type of appeal. But, beyond that, the parties appear to have settled the whole of IT1 1500292/1999 by a payment from the respondent to Mr Day and that was embodied in the tribunal's order. Even if the Notice of Appeal had not been on so difficult a ground and so unexplained a ground as perversity, the fact that the proceedings have been stopped going further in that way seems to me quite conclusive.[13]Mr Day will, no doubt, think that it is cruel to him that he should not have an extension of time. But truly it is a case of being cruel to be kind because were I to allow this matter to go forward Mr Day would, no doubt, have false hopes; he might incur costs on his own side and there is a grave risk that he would end up paying Crane's costs. To allow the matter to go forward would really not be in Mr Day's best interests, whatever he might think today.[14]It seems to me that the combination of the appeal being out of time, it being on unexplained perversity grounds and, above all, being in proceedings which have been dismissed, makes it quite impossible to grant the extension that Mr Day seeks. Accordingly, I dismiss the appeal.