MR K HUMPHREYS v PERSIMMON HOMES (WALES) LTD [2000] UKEAT 1270_00_0812

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1270_00_0812

Case No Appeal No. PA/1270/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR K HUMPHREYSAPPELLANT

PERSIMMON HOMES (WALES) LTDRESPONDENT

Before

Mr Justice Lindsay

Date 8 December 2000

[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED For the Respondents THE RESPONDENTS NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : I have before me the appeal of Mr Karl Humphreys in the matter Humphreys v Persimmon Homes (Wales) Ltd . Mr Humphreys appeals against the Registrar's refusal to extend time for the lodging of his Notice of Appeal which was received some 88 days late. There is no attendance by either side. It seems that Mr Humphreys began work for this particular employer in June 1998. He lodged an undated IT1 claiming that he had been employed in July of 1998 until 23rd April 1999. The IT1 was for unfair dismissal.

[2]On 20th May 1999 the employer lodged an IT3 asserting that Mr Humphreys did not have a year's continuous employment and that on that account his claim for unfair dismissal should be dismissed.

[3]On 22nd May 2000 a decision of the Employment Tribunal was sent to the parties. It was as follows:

"The applicant complains of unfair dismissal. He was employed from June 1998 to April 1999. By Section 108 of the Employment Rights Act 1996 and employee does not qualify to complaint of unfair dismissal unless he has one full year's service. The applicant has only 10 months' service. I therefore strike out these proceedings."

The reasons were signed by the Chairman, Dr Rachel Davies.

[4]On 3rd July 2000 the 42 days permitted for a timely appeal, which time runs from the sending out the decision to the parties, expired.

[5]On 29th September 2000 a Notice of Appeal was received. On 29th September also the Employment Appeal Tribunal advised Mr Humphreys that he was 88 days out of time and asked him whether he wished to apply for an extension of time. On 1st October Mr Humphreys wrote back to the Employment Appeal Tribunal. He said that he had approached the Secretary of State for Wales who had, after an elapse of time, suggested to him that he could and might wish to appeal to the Employment Appeal Tribunal. Before that, he said, he had not known to whom to appeal nor had understood there to be some time limit.

[6]As it commonly does, the Employment Appeal Tribunal then sent the appellant's observations to the respondent in the case for its observations and on 16th October the respondent indicated that it would oppose relief being granted by way of extension of time to Mr Humphreys.

[7]On 30th October the Employment Appeal Tribunal asked Mr Humphreys for his final submissions and he replied in writing. He showed a considerable distaste for his former employer's conduct and for any system which would bar his claim for unfair dismissal but I cannot say that he adds anything of substance by way of explanation of his delay in lodging a Notice of Appeal.

[8]On 2nd November 2000 the Registrar made her

[9]On 6th November 2000 Mr Humphreys was sent a sealed copy of the order and on the same day he appealed against the Registrar's Order. He claimed that he had acted promptly once he had heard from the Welsh Office. He says also this:

"I contacted solicitors none of which were interested and I got fobbed off and was told it would cost me £108.00 per hour for representation this being well beyond my means. So I thought the only people who may be interested would be those who didn't want me claiming benefit. Whereupon I wrote off to the Secretary of State for Wales Paul Murphy to see if I could do anything further. A delay in the Welsh Office replying resulted in the need for an extension of time. How can I be penalised for not being able to appeal for an extension of time through circumstances beyond my control. As previously stated by myself until I received an appeal pack from the EAT an organisation I didn't know even existed how could I put my appeal forward within the stipulated time limits imposed. If I am not responsible for delays incurred how can I be held accountable for things out of my hands. …"

[10]Finally, in the chronology, I should mention a letter dated by Mr Humphreys, 2nd December, although received at the Employment Appeal Tribunal only yesterday, 7th December 2000. It says this:

"In response to your letter dated 30 Nov 2000 Unfortunately I have not received this correspondence in sufficient time to lodge a skeleton argument as a time limit of 7 days applies. Also please find enclosed the form of attendance to which I must decline to appear at the hearing as I presently engaged in attending "

New Deal" (a pilot scheme offering an extra help programme set out by the Employment Agency) and it would be irresponsible not to keep up my obligations while unemployed. I sincerely hope this will not affect my appeal in any way." So accordingly no one appears.

[11]As for Mr Humphreys not knowing to whom to appeal nor as to whether there was a time limit as to appeals, as that very brief citation from the Abdelghafar case in the Court of Appeal as cited in the Registrar's order makes it clear, ignorance of such matters is generally no sufficient excuse for delay nor reason for an extension of time. I should add I am not told when Mr Humphreys applied to the Welsh Office, when he went to solicitors, as he obviously did, and when the Welsh Office answered him. Had he been here, I could have asked for explanations on that subject that might or might not have been satisfactory. But it is to be borne in mind that when the Employment Tribunal sends out decisions it sends out, as a matter of standard practice, a document called "Notes Accompanying Tribunal Decisions" and they clearly show to whom and within what period appeals may be lodged. I have no reason to think that the standard practice was not followed here. Moreover, there is another simple point that does not help Mr Humphreys and that is that he was able to compose a home-made Notice of Appeal in September 2000 and it is hard to see why he should not have been able to do so in time in late May, June and early July of this year.

[12]But to such considerations there is an added factor here operating against Mr Humphreys' interest. Normally the merits of an appeal play little part in whether time should be extended. That is for the good reason that in many cases in order sufficiently to investigate the merits one would have to hear a great deal of the appeal ex parte. There would, in other words, be something approaching a hearing of the appeal simply to ascertain whether the appeal should be heard, which would be a curious and illogical position to arrive at. But where the merits can be readily be seen to be weak to the point of being hopeless, well then, they can fully be taken into account, even at this stage, because there is plainly no point in extending time for an appeal where the appeal can only fail. To extend time would serve only the raising of false hopes in the appellant and perhaps conduce to the waste of time and money by the appellant and perhaps by the respondent. Here, the Notice of Appeal against the striking out is really a complaint about the legislation which requires one year's continuous service. It is not within the Employment Appeal Tribunal's or Employment Tribunal's power to do anything about that. Given that the two year continuous service requirement survived relatively unscathed in the Seymour-Smith case, and given also that Parliament has only tolerably recently introduced the one year figure which applied in Mr Humphreys' case, and given also that Mr Humphreys only served 10 months not even a year, there is really no practical prospect of success in his appeal. His complaint truly is not against the Employment Tribunal or even the Employment Appeal Tribunal, but against the legislation, and that, as I say, we can do nothing about. I am entitled in the unusual circumstances to take a view of the merits that they are truly hopeless and for that reason they, too, militate against any grant of an extension of time to Mr Humphreys.

[13]Taking that view of the merits and having regard to the other factors I have mentioned, I must dismiss the appeal. I do not extend time. Mr Humphreys' complaint is really more against Parliament than against either the Employment Tribunal's decision or the reaction of the Employment Appeal Tribunal.

order

"AND UPON FURTHER CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS with special attention paid to 71C "there is no excuse, even in the case of an unrepresented party, for the ignorance of time limits" IT IS CONSIDERED that there has been shown no exceptional reason why an appeal could not have been presented within the time limit laid down in paragraph 2(2) of the Employment Appeal Tribunal Rules 1993 AND IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused."