MISS S SEALY v AXA SUNLIFE PLC [2000] UKEAT 136_00_1310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 136_00_1310Case No Appeal No. EAT/136/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS S SEALYAPPELLANTAXA SUNLIFE PLCRESPONDENT
Before
Mr Justice LindsayDate 13 October 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MR R PALMER (of Counsel) Instructed by Group Legal Department AXA UK 107 Cheapside London EC2V 6DU MR JUSTICE LINDSAY (PRESIDENT) I have before me the appeal of Miss S Sealy in the matter Sealy-v-AXA Sunlife PLC . Today Mr Palmer appears for the Respondent, AXA, but Miss Sealy does not attend. She has been earlier in contact with the Employment Appeal Tribunal and has indicated that she has some medical appointments that would have made it difficult for her to attend today, perhaps impossible to attend today, and on 10 October she wrote:
"Can you please state if my non-attendance on Friday will have any adverse affect on my claim" and she was told by the Employment Appeal Tribunal that as long as the Judge "is in possession of all the relevant documentation in respect of your appeal …. then your absence will not have an adverse affect on your appeal"
[2]Well, the documentation does appear to be complete, but it contains, as I shall come on to, no explanation, still less an explanation on oath, of the delays that I shall have to attend to because this is an appeal by Miss Sealy against the Registrar's Order failing to extend the time within which to lodge a Notice of Appeal.[3]The chronology is that on 9 August of last year, Miss Sealy lodged an IT1 for constructive dismissal. The dismissal was said to have happened in December 1998. On 21 August of last year, AXA's IT3 alleged not only that there had been a compromise under which Miss Sealy had received over £12,000 but that in any event her IT1 was out of time and in the further event, that in any case she had been made redundant.[4]On 29 October of last year there was a hearing at the Employment Tribunal at Bristol. Their decision was sent to the parties on 6 December. It was the unanimous decision of the Tribunal, under the Chairmanship of Mr C G Toomer at Bristol that the Originating Application was dismissed and that the Respondent's application for costs was refused. The Applicant, Miss Sealy, did not attend but had put in written submissions.[5]The Employment Tribunal held that her IT1 had been some five months out of time. They dealt with that in paragraph 10 "10 We can accept" they said "that this may very well have been an anxious and even a traumatic time for the Applicant, but we have to ask whether she has shown to us that it was not reasonably practicable to bring the claim within a 3 month limit. In other words, was there anything which effectively prevented her from bringing the claim within that period? We unanimously conclude that the Applicant had not satisfied us of that. It seems to us that her state of health was not incapacitating : there was no lack of knowledge of some important relevant information which made the difference between her knowing or not knowing that she had a claim . Even if there were, there is still no explanation of the failure to act between April (when she received advice from her Solicitor including advice as to the time limit) and 9 th August when she presented her originating application. We are not therefore satisfied in all the circumstances that we are entitled to exercise our discretion in order to extend the time limit, firstly because we are not satisfied that there was any reason why it was not reasonably practicable to make the claim, secondly because we are not satisfied that the claim was being presented within a reasonable time in any event." I mention that because one can see that the decision was itself about the passage of time and the failure to act within a reasonable time, and one might have thought that, in that sort of case beyond others, if there was to be an appeal it would be punctually attended to.[6]On 16 December, there having been an application by Miss Sealy for a review, that application was declined: the review was not permitted. On 17 January of this year, six weeks from 6 December expired; in other words the 42 days from the sending out of the decision expired. On 27 January, that is to say 10 days late, the Notice of Appeal was received, but as I say, the matter was 10 days late. The Notice of Appeal was 10 days late if it was intended to be an appeal against the decision sent out to the parties on 6 December but it was on the very last day of the six week period if the appeal was directed against the decision to decline a review. Box 3 of the Notice of Appeal has as part of its print the following:
"3 The appellant appeals from (here give particulars of the decision of the industrial tribunal from which the appeal is brought including the date)."
And it is filled in simply with a question mark by Miss Sealy.[7]On 3 February, the Employment Appeal Tribunal asked Miss Sealy to which decision, either the substantive decision, or the review decision, the appeal was directed. They said this:
"Within seven days please clarify whether your appeal is against the decision on the substantive merits of your case promulgated the 6 th day of December 1999 or the review decision promulgated on the 16 th day of December 1999 or both. You should however, note that if you wish to appeal against the decision promulgated on the 6 th day of December 1999 you will need to make an application for an extension of time as your notice of appeal was received 10 days outside the 42-day time limit prescribed by the Employment Appeal Tribunal rules 1993"
By letter of 7 February Miss Sealy indicated she wished to appeal against what she called "all decisions", which presumably meant both.[8]As is its ordinary practice, the Employment Appeal Tribunal office then sought the views of the Respondent, AXA, and on 29 February the Respondent commented on Miss Sealy's application, making a number of points opposed to it. On 7 March, Miss Sealy sent in written submissions, at some length, seeking presumably to explain why the Notice of Appeal was not within the six weeks period from 6 December 1999. I am bound to say that, attending to that letter as one might, there is no explanation there visible of why the Notice of Appeal was out of time, at any rate if it was intended to be directed, as transpired to be the case, against the decision sent out on 6 December.[9]On 20 March, the learned Registrar made an Order which includes this:
"AND UPON DUE CONSIDERATION of paragraph 1(1) of the Practice Direction (Employment Appeal Tribunal – Procedure) and 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 an appeal could not have been presented within the time limit 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."
On 23 March a sealed copy of the Order was sent to Miss Sealy and on 27 March she indicated she wished to appeal. I mentioned that we had already received at the Employment Appeal Tribunal submissions by Miss Sealy in writing as to, or purportedly as to, an explanation of the delay but that nothing in the submissions comes within any distance of the sort of exceptional reason that the United Arab Emirates –v- Abdelghafar case requires.[10]As I mentioned earlier, one might particularly expect prompt attention to procedural matters here as the case at Bristol itself had been concerned with the passage of time. I have already referred by quoting part of the Order of 20 March to the Abdelghafar case which sets out guidelines in this area but it is also to be remembered that a more recent case in the Court of Appeal, Aziz – v – Bethnal Green ,was a case in which there was a challenge on the lines that the strict attitude to such matters in the Employment Appeal Tribunal was even stricter than was commonly adopted by the Court of Appeal and to that extent was inappropriate. However, the Court of Appeal resisted that argument and there is nothing in Aziz –v- Bethnal Green that disapproves of the relatively stern line taken by the Employment Appeal Tribunal in matters such as this, and, indeed, there are many cases which come before the Employment Tribunal when individuals or parties other than individuals are not allowed to take their appeals further upon much shorter delays than the one in issue here: indeed there are cases where one day's lateness has led to a failure to extend.[11]Accordingly there is no ground here on which I can come to any conclusion other than that the appeal should be dismissed. But, for clarification's sake, it ought to be added to the Order that nothing in today's Order or, indeed, in the Order of 20 March of the Registrar, precludes an appeal against the decision to decline a review, that decision having been made on 16 December 1999 and, as I mentioned earlier, having been met, as it transpires, with a Notice of Appeal on 27 January, the very last appropriate day. So that appeal can go ahead.[12]The appeal against the decision promulgated on 6 December does not receive the extension of time which is sought.