MR J F SIMS v ENTERPRISE RENT A CAR UK LTD [2000] UKEAT 1252_99_1204

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1252_99_1204Case No Potential Appeal No. PA/1252/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J F SIMSAPPELLANTENTERPRISE RENT A CAR UK LTDRESPONDENT
Before
Mr Justice LindsayDate 12 April 2000
[1]APPEARANCES For the Appellant APPELLANT IN PERSON. For the Respondent MISS M TETHER of Counsel Instructed by: Messrs Taylor Joynson Garret Solicitors Carmelite 50 Victoria Embankment Blackfriars London EC4Y 0DX. MR JUSTICE LINDSAY (PRESIDENT) This is the appeal of Mr J F Sims in the matter Sims V Enterprise Rent A Car UK LTD. Mr Sims appeals against the refusal of the Registrar to extend time for a Notice of Appeal, which, without the extension, is considerably out of time. Mr Sims has appeared today in person. He is a United States Citizen; I mention that because from time to time in the course of the case he has to leave the United Kingdom to go to America. Enterprise appears by Miss ether. On 2 June 1998 Mr Sims lodged an IT1 claming unfair dismissal and racial discrimination against Enterprise. In November and December 1998 there was a hearing at Liverpool before the Chairman, Mr Homfray-Davis, and two members, Mr Thomas and Mr Heyes. The hearing was of three days plus a day, 17 December 1998, for the Tribunal to deliberate amongst themselves in chambers. At the hearing, Mr Sims and indeed Enterprise were represented by counsel and solicitors and counsel continued to advise Mr Sims after the oral hearing was concluded. On 5 January 1999 the decision was sent to the parties. The decision was this. It was unanimous:
"1) The Applicant's claim that his dismissal was an act of racial discrimination on the ground of his nationality fails and is dismissed. 2) The Applicant's dismissal was unfair on procedural grounds. 3) The Applicant would have had no chance of retaining his job, had the Respondent acted reasonably. 4) The Applicant did not act dishonestly. 5) Per curiam: The Applicant caused or contributed to his dismissal to the extent of 30%."
[2]Miss Tether accepts that the decision might have been, in some respects, better expressed and there is a passage at the very end that could have caused confusion as paragraph 9 says: 9. "In these circumstances the applicant's claims fail and are dismissed." But that was under the heading 'Race Discrimination' and although the plural "claims" might have been a little misleading, I think, on a fair reading, that paragraph 9 would have been taken not to indicate that Mr Sims had failed in every one of his claims but that all his claims under the heading 'Race Discrimination' were dismissed, as the decision plainly indicated that Mr Sims had succeeded on procedural grounds in relation to unfair dismissal. His advisors thus turned the question of compensation. On 3 February or thereabouts his solicitors asked the Respondent's solicitors what proposals were made in relation to compensation. Mr Sims has said orally this morning that that request was not answered and one might have thought that the very fact that there was no answer, might have prompted an appeal or at least some activity to guard against there being no compensation.[3]On 16 February 1999 the 42-day period expired; the 42 days being the period within which a Notice of Appeal has to be lodged. The position was that throughout the 42 days solicitors and counsel had advised Mr Sims who was in contact with them, in relation to the case, from time to time. I think that during the 42 days he had had to go to America but he candidly accepts that one can appeal from Chicago as well as from England. On 27 May his solicitors wrote to the Respondents solicitors on the subject of compensation and they said, writing to Taylor Joynson Garrett, the Respondents solicitors:
"You indicated that you are taking your clients instructions upon payment of compensation to our Client reflecting the fact that had a proper procedure been followed, our Client would have remained in employment longer. You indicated you would take instructions on the matter and revert. Please may we hear from you."
That is 27 May and on 2 June Taylor Joynson Garrett, answering to Messrs Brabner Holden Banks Wilson, who are Mr Sims' Solicitors (or were so at the time) say:
"In our conversation in February we indicated that our view was that your client was not entitled to any payment of compensation given the terms of the Tribunal's decision. "
[4]The letter seems to indicate that the Respondent's Solicitors had, as early as February, indicated to Mr Sims' solicitors that their view was that no compensation needed to be paid. Continuing the quotation from the letter: We indicated that we would take our client's instructions and we confirm that they share our view. The terms of the Tribunal's decision are clear that both your client's claims, for discrimination and unfair dismissal, were dismissed." That, it seems to me, is wrong. The claim for unfair dismissal had succeeded but in a form that was unlikely to lead to any payment of any substance. On 7 June Mr Sims' solicitors wrote to him including a copy of the letter they had just received from Enterprises solicitors and looking forward to hearing from him in relation to a letter of 27 May, an earlier letter. Mr Sims tells me today that it was only after it had been indicated to him that the Respondents were saying that he was entitled to no compensation that he turned his mind to an appeal. There were enquiries made by Mr Sims, through the offices of the Employment Appeal Tribunal in relation to the decision, which, as I mentioned, had been sent to the parties on 5 January. On 14 October, an immense length of time since the 42 days had expired on 16 February, a Notice of Appeal was received at the Employment Appeal Tribunal. The point which Mr Sims particularly wished to have as the subject-matter of his appeal was indicated in the letter of 14 October where he says:
"For this reason I would now like to appeal the point of law in relation to the decision which states that "the applicant would have had no chance of retaining his job had the respondent acted reasonably."
[5]I will come on later to allegations of uncertainty and confusion in the decision which now is sought to be appealed. That particular paragraph- that the applicant would have had no chance of retaining his job had the respondent acted reasonably- one would think would be clear enough. On 24 November the Employment Appeal Tribunal sought the views of the respondent as to whether an application out of time should be granted or not and the respondent indicated it would oppose any extension. On 6 December Mr Sims answered the respondents' objections or attempted to do so. He accepted that 5 January 1999 was the date on which the decision had been sent to the parties and it is that date which set the 42-day period running. He made the point that the decision was confusing and that it did not reject his claim for unfair dismissal. The Registrar ruled on the matter on 14 December and the substantive paragraph says this:
"Upon due consideration of the judgment in United Arab Emirates v (1) Mr Abdelghafar (2) Dr Abbas it is deemed that there are no exceptional circumstances and it was reasonably practicable for the appeal to be presented in time. "
It is ordered that the aforesaid application is refused."[6]On 16 December Mr Sims appealed against that refusal and he candidly accepts (as, indeed, he has to) that he missed, as he puts it, the 42 days. He was during part of the time abroad, but as I have already indicated, he candidly says also he could have appealed from Chicago. His only ground that, in my view, comes close to being arguable as a ground likely to attract the court in granting an extension of time is the unusual ground that the judgment was so confused or unclear that he did not realise that he had lost the case (as to compensation, at any rate) for a time. In his written submissions, laid before me today he says:
"The Respondent suggests that the Tribunal's decision was clear in its rejection of compensation for unfair dismissal. Nowhere in the decision does the Tribunal reject any form of compensation for the unfair dismissal."
One can see- although it should be a rare case- that if a man cannot understand that he had lost, he could not be expected to appeal. So far as concerns unfair dismissal, Mr Sims had reason to believe that he had succeeded on it. But it has to be borne in mind that throughout the 42 day period he was represented by solicitors and, as it would seem from what he has said to me this morning, from time to time also by counsel and the relevant question therefore would seem to be not whether, he individually had been confused by the decision but whether a solicitor would regard the matter as so uncertain as to lead to real confusion. Moreover the question should be not whether some abstract solicitor would have been so confused but whether the particular solicitor concerned was so confused. Miss Tether for Enterprise draws attention to a paragraph in the decision at 6.2. The paragraph is not altogether understandable without going into the matter more fully which I do not propose to do but the end of the paragraph says:
"In these circumstances the applicant would have had no chance of retaining his job."
[7]That would seem to be a clear enough conclusion. It is fair to say, as it seems to me, that the Tribunal's conclusion that inevitably Mr Sims would ultimately have lost his job is not necessarily an indication that he could not get an award of compensation because it might be (and I only say it might be) that properly understood the position would be that in order to effect a fair dismissal time would have had to have been taken up with further enquiries or the giving of notice or other matters such that, in the meantime, Mr Sims would have been employed and remunerated and therefore, to that extent, could have looked to receive compensation for that period, even if ultimately he would inevitably have lost his job. A conclusion that he would not retain his job does not necessarily indicate a holding that compensation would necessarily be zero.[8]But if there is any uncertainty in that area can it be used here to explain the delay? Well, it seems to me that it does not explain the delay. The solicitors acting for Mr Sims, so far as I can see from any evidence properly so-called, did absolutely nothing in the 42-day period. Again so far as concerns evidence before me, there is no evidence that the solicitors or counsel acting for Mr Sims were confused as to the form of the order. Indeed, looking simply to evidence, there is no evidence from Mr Sims that he was confused during the 42-day period or that he had misunderstood advice given to him. He has told me this morning that the advice that he was given was that it was unwise to spend good money chasing bad. That was advice of the most practical and obvious nature, independent of any degree of confusion about the underlying decision. It seems to me that to allow into my consideration any uncertainty in the formulation of the decision or its practical effects in relation to compensation would be to give effect, as if it had operated within the 42-day period, to a reason which seems not to have operated at all within that 42-day period and as to the operation of which during that period there is, strictly speaking no evidence at all. If, looking beyond what is strict evidence, I accept what Mr Sims says as to the views of his solicitors and counsel, their views and the nature of their advice about good money not being spent chasing bad could not be plainer, they were not in doubt that they were saying do not take the case further. Once one looks beyond the possibility of confusion, it seems to me there is no real ground shown for extending time.[9]The balance of relative prejudice to the Appellant and to the Respondent is never or only rarely determinative and in any case, Miss Tether draws attention to the fact that the IT1 is now fairly elderly; it is dated 2 June 1998 but the events go back to the spring of 1998 and that if this appeal were to be allowed, and were that success to lead to a substantive hearing one would be looking at extremely remote and stale events. That is a form of prejudice which cannot be put out of mind. The prejudice to Mr Sims is obvious but I do not regard the balance of relative prejudice to be really helpful in this case, nor is it right for me to attempt to explore the merits of the appeal because I could not possibly come to an informed view without hearing the appeal, which, of course, would be putting 'the cart before the horse'. I have been referred to the well known Abdelghafa r case and also to the more recent Aziz v Bethnal Green City Challenge Company Limited [2000] IRLR 111 case which in the Court of Appeal affirms the relatively tough approach taken in the Employment Appeal Tribunal to questions of this kind. If I were to exercise afresh, which I think I am required to do, the discretion which the Registrar purported to exercise on 14 December, I could only, as it seems to me, come to the same conclusion and in that regard I must therefore, exercising the discretion afresh dismiss this appeal.