MISS L D MCDADE v JULIAN CRITCHLOW & OTHERS [2000] UKEAT 1442_99_2607

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1442_99_2607

Case No Appeal No. PA/1442/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS L D MCDADEAPPELLANT

JULIAN CRITCHLOW & OTHERSRESPONDENT

Before

Mr Justice Lindsay

Date 26 July 2000

[1]APPEARANCES For the Appellant IN PERSON For the Respondents MR T PULLEN (of Counsel) Instructed By: Mrs M Van Der Zyl Messrs Kingsford Stacey Blackwell Solicitors 14 Old Square Lincoln's Inn London WC2A 3UB MR JUSTICE LINDSAY (PRESIDENT) : I have before me the appeal of Miss L.D. McDade in the matter McDade against Julian Critchlow & Others. Miss McDade appeals against the learned Registrar's refusal to extend time for the lodging of her Notice of Appeal. Today before me Miss McDade appears in person and the Respondent individuals appear by Mr Pullen. It is a case where one needs to have a sharp view of the chronology of the case. On 17 February 1999 Miss McDade, who has had experience as a legal secretary or paralegal (but is not currently employed, as I understand it in such a way) lodged her IT1 against the Respondent individuals. It claimed unfair dismissal, wrongful dismissal and sex discrimination, together with some less easily recognised claims. She claimed in her IT1 to have been employed by the individual Respondents from 23 October 1995 to 17 November 1998. I am not sure whether I have got that starting date right, but, at any rate, the important date is the closing date, 17 November 1998. One immediately notices the time gap between the alleged date of dismissal, 17 November 1998 and the date of the lodging of the IT1, 17 February 1999.

[2]On 15 March 1999 an IT3 was lodged by the Respondents and it took the point that the claims for unfair dismissal, wrongful dismissal and sex discrimination were all out of time. It said that Miss McDade was well aware of the law as to time limits. It claimed, in fact, that she had been dismissed for gross misconduct. It accepted as correct the date given for her dismissal by her, that is to say 17 November 1998. It would seem that a preliminary hearing was then arranged to deal with the time bar point, although Miss McDade says that she was surprised that that was what was dealt with. At all events, on 7 May and 27 July 1999 a hearing took place before a panel of three under the chairmanship of Ms I. Manley. On 23 August the Decision was sent to the parties and it was unanimous as follows:

"(1) The Originating Application was not submitted within the 3 month time limit in accordance with section 111 of the Employment Rights Act 1996 in respect of the claim for unfair dismissal and Article 8 of the Industrial Tribunal Extension of Jurisdiction Order 1994 in respect of the wrongful dismissal claim. (2) It was reasonably practicable for the Applicant to submit her claim for unfair dismissal in time and the Tribunal therefore has no jurisdiction to hear the claim. (3) The claim for sex discrimination was made within the time specified in section 76 of the Sex Discrimination Act 1975 if the date of the Act complained of was the appeal on 17 December 1998. (4) In the alternative, if the claim for sex discrimination is not within time, it is just and equitable in all the circumstances for the Tribunal to consider the claim for sex discrimination and it should be allowed to proceed."

[3]So one way or another the sex discrimination was not in the event time-barred. That Decision was sent to the parties on 23 August 1999. The Tribunal in the course of their Decision held:

"The claim should have been submitted by 16 February 1999 to be within three months of dismissal or of the discriminatory act if that act was the dismissal itself."

And they said also, under the heading "Conclusions" in their paragraph 7:

"7 Having considered all the evidence before it, the Tribunal is of the view that it was reasonably practicable for this Applicant to submit her claim for unfair dismissal within the time limit specified in the Employment Rights Act 1996. The Tribunal were impressed by the Applicant's grasp of the proceedings and were aware that she had worked for many years in a solicitors' office, that she had legal training herself and had pursued a previous complaint in the Employment Tribunal. …"

[4]When a Decision is sent out to the parties, as this was, as I mentioned, on 23 August, it is accompanied by a standard note of guidance which, in bold type, indicates that an appeal, if there is to be one, has to be lodged within 42 days of the sending out of the decision and that it is an appeal to the Employment Appeal Tribunal. Moreover, in this particular instance, as that citation from the Decision itself and as Mr Pullen has reminded me, Miss McDade had already conducted or lodged an appeal with the Employment Appeal Tribunal and hence, so to speak, knew the ropes. But what happened was that on 2 September 1999 she applied to the Employment Tribunal to review its decision. On 28 September the Employment Tribunal declined to do so. On the next day, 29 September, she directed an appeal, not to the Employment Appeal Tribunal, but to the Employment Tribunal itself, against the decision of 23 August. She wrote to the Employment Tribunal saying:

"I attach an Appeal of the issues relating to wrongful dismissal, unfair dismissal and constructive dismissal at common and statute law."

[5]The instrument that she sent to them is some two and a quarter pages long of typing and is headed "The Employment Tribunals Before Chairperson: Ms I. Manley" and it says "Appeal". There is nothing about it that indicates it is addressed to the Employment Appeal Tribunal. Quite why Miss McDade sent the Notice of Appeal to the Employment Tribunals is not at all clear and Mr Pullen makes the point, basing himself on a later paper, namely Miss McDade's own application to extend time within which to lodge a Notice of Appeal that does suggest at its paragraph 2 that it was not inadvertent but a deliberate choice which caused her to appeal to the Employment Tribunal. In that paragraph 2, on our page 8, she says:

"The Applicant also perceives that she may have inadvertently issued the Appeal correctly on the Employment Tribunal as she should avoid the Employment Appeal Tribunal due to the Masons action and this may also have caused confusion. The Applicant's human rights were abused by the Employment Appeal Tribunal by its severe abstraction of the case by failing to cite cited case law stated as a point of law, legal argument and facts in the Masons action, thus failing to provide her with equality before the law, fairness, impartiality and justice. …"

[6]We are not entirely clear what the message from that is but it could be, as Mr Pullen said, that there was a deliberate choice not to approach the Employment Appeal Tribunal because of earlier disappointments with the Employment Appeal Tribunal but rather to approach the Employment Tribunals.

[7]Going on with the chronology, on 4 October the 42 days for appeal against the decision of 23 August expired. On 15 October the Tribunal below, the Employment Tribunal, wrote to Miss McDade, saying:

"Thank you for your letter of 29 September. A Chairman of the Tribunals to whom your case has been referred, has instructed me to advise you that in the circumstances of the appeal the Applicant's complaint of Sex Discrimination will not be listed for a Full Merits Hearing until the outcome of the appeal."

[8]Miss McDade takes the point that, on a reading of that, it does rather suggest that the Employment Tribunal was indicating that there was an existing appeal and one can see force in that submission. There is equally some force in Mr Pullen's answer that what was happening was that the Employment Tribunal, having received the document headed "Appeal", had not noticed that it was directed only to "The Employment Tribunals" and had, no doubt, assumed that it had been sent to the Employment Appeal Tribunal and hence had thought that there was an existing appeal. But so far as concerns Miss McDade's mind, she claims that the effect of that letter was that, so far as she was concerned, the Employment Tribunal was indicating to her that there was a subsisting appeal which, of course, at that point there was not.

[9]Further time passed and on 29 November 1999 the Employment Tribunal wrote afresh to Miss McDade to acknowledge their receipt of her letter of 29 September, exactly two months before, and in this letter they say this:

"Thank you for your letter of 29 September 1999. Any appeal must be made to the Employment Appeal Tribunal [and then it gives the address]. The Employment Tribunals cannot accept appeals on behalf of the Employment Appeal Tribunal."

[10]So that, by now, whatever the position had earlier been, the Employment Tribunals recognised that the document that they had earlier received, described as an appeal and directed to "The Employment Tribunals", was not properly directed as an appeal to the Employment Appeal Tribunal but was an appeal to the Employment Tribunal and that makes sense of their sentence that the Employment Tribunals cannot accept appeals on behalf of the EAT. It had taken them two months to recognise the position. On 30 November also Miss McDade wrote to the Employment Tribunal, saying:

"Further to your letter of 29 November received on even date, I should like to know why this information was not provided to me in your letter of 15 October. I have been awaiting a response to my letter of 24 September [we do not seem to have that letter] for an Order for Directions hearing so that this matter could progress and read the letter to mean that an appeal was granted by you, that is before the Employment Tribunal. I did not seek leave to appeal from the Employment Tribunal to the Employment Appeal Tribunal for this reason, as I was unaware it was necessary, and that the lower court had jurisdiction to appeal its own decision. I will now attempt to obtain an appeal hearing before the Employment Appeal Tribunal [and the letter then goes on]. "

[11]On 30 November the document headed "Appeal" and hitherto addressed to the Employment Tribunals was received by the Employment Appeal Tribunal and treated by the Employment Appeal Tribunal as being a prospective Notice of Appeal. It begins:

"The Applicant appeals the Decision of Ms Manley dated 23 August 1999 and the decision of the Review of Facts dated 28 September 1999 as the reasoning is perverse on the following points of law and fact: Fact The Applicant's Originating Application was never served out of time thus the jurisdiction issue fails in its entirety and the case should be progressed on all grounds, that is wrongful dismissal, unfair dismissal, constructive dismissal and sex discrimination and not just sex discrimination alone. Law The Applicant was wrongfully dismissed by reason stated in the request for a review of facts: the Applicant's contract was repudiated by dismissal on 17 November 1999 but dismissal was not complete until a condition subsequent, namely a clause in the contract enabling an Appeal process to occur, did actually occur. …"

It will be remembered that it was Miss McDade's own original assertion that she had been dismissed on 17 November 1998 in her IT1 and that the IT3 accepted that date as accurate.

[12]On 6 January 2000 (and one has to note the long gap from the receipt of the Notice of Appeal on 30 November 1999) the Employment Tribunal wrote to Miss McDade, saying, of that Notice of Appeal:

"It was received here on the 30 November 1999 and is therefore 57 and 21 day(s) out of time respectively."

I pause to add that the days there given are relative to 23 August and 28 September. Continuing with the letter:

"Accordingly paragraph 3 of the enclosed Practice Direction is being applied. If therefore you wish to pursue the matter you must let me have your application to extend time within which to lodge your Notice of Appeal together with your reason(s) for the lateness. Please let me have your application and reasons within the next 14 days."

[13]No explanation was given by the Employment Appeal Tribunal for the long interval between the receipt of the Notice of Appeal on 30 November (as it says there) and this letter of 6 January 2000. Promptly enough, Miss McDade on 13 January 2000 lodged an application to extend time. Then she says, in paragraph 3:

"3 Confusion arose because an appeal became necessary. The Applicant issued the Appeal within the time limit restriction on 29 September (37 days from the Decision of 23 August 1999), however she served it on the Employment Tribunal instead of the Employment Appeal Tribunal under cover of a letter also dated 29 September 1999. The Applicant served three copies of the Appeal on the Employment Tribunal, by facsimile, by post and thereafter a further copy by post (with the Decision of 23 August which had been omitted)."

She goes on with her paragraph 4:

"4 By a letter dated 15 October 1999, receipt of the Appeal was acknowledged by the Employment Tribunal and a stay of the Sex Discrimination complaint was notified 'until the outcome of the appeal'. No one appears to have noted the error of the court's jurisdiction between 'Employment Tribunal' and 'Employment Appeal Tribunal' at this time [and, again, the sentence goes on]. "

[14]A further delay by the Employment Appeal Tribunal then ensued until 14 February 2000, when, as it usually does in such cases, having received an application for an extension of time by an Applicant, it wrote to the Respondents' Solicitors asking them what their reaction to her application was. That letter went to Kingsford Stacey Blackwell, Solicitors, 14 Old Square, Lincoln's Inn, London WC2A 3UB on 14 February 2000, so far as one can tell from the writing on the letter itself. Again, there was yet further delay and it was not until 22 March, well over a month afterwards, that the Respondents answered. Kingsford Stacey Blackwell, writing from 14 Old Square, Lincoln's Inn, began:

"We thank you for your letter dated 14 February 2000 enclosing Ms McDade's application to extend time to lodge a Notice of Appeal."

They said that they take the application to be entirely misconceived.

[15]The Employment Appeal Tribunal then, with commendable speed now, wrote to Miss McDade on 22 March, giving Miss McDade a final opportunity to make any further submissions in the light of the Respondents' letter and on 27 March she did that, under a heading "Applicant's Final Submissions". Accordingly, by now, both sides had addressed the issue of the extension of time and on 10 April the Registrar made an Order as follows:

"AND UPON DUE CONSIDERATION of paragraph 3(2) of the Practice Direction (Employment Appeal Tribunal – procedure) where it is clearly the responsibility of the Appellant to ensure that an Appeal is submitted to the Employment Appeal Tribunal within 42 days AND UPON CONSIDERATION of 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 limited laid down in paragraph 3(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."

And on 13 April Miss McDade, promptly enough, appealed against the Registrar's Order.

[16]So much for the chronology. Some points do stand out. Before the 42 days from 23 August had expired Miss McDade had, on 29 September 1999 directed an appeal to the Employment Tribunal. She did that on the 29 th . Had she been told promptly that it was to the Employment Appeal Tribunal that one had to appeal, she could, and might, have lodged a timely appeal by the date 4 October, which was the expiry date of the 42 days. But the Tribunal below did not reply to her for over a fortnight and when they did, on 15 October, they did so in confusing terms. They did use terms which suggested there was an existing appeal. I see force in Mr Pullen's point that they might have treated the Notice that she had sent them as also having been sent to the Employment Appeal Tribunal, but, so far as the matter operated on Miss McDade's mind, I can see that there is a reading which could have suggested to her that the Employment Tribunal recognised that there was a subsisting appeal. It is thus difficult altogether to discount Miss McDade's plea that she thought the Tribunal below had accepted an appeal and that she had been waiting for a further response from the Employment Tribunal.

[17]Then next the Employment Tribunal awoke to its error (and by then they did realise it was an error thus in a way displacing Mr Pullen's interpretation of the letter) they told her, two months after she had written to them, that an appeal could not be to the Employment Tribunal but had to be to the Employment Appeal Tribunal. I see a lot of force in Mr Pullen's points that given Miss McDade's experience of the law and her more specific experience of employment appeals, and given also the nature of the guidelines that are sent out with Decisions, she surely must have known that the appeal had to be with the Employment Appeal Tribunal. But, against that, one can see that there was, at lowest, a possibility of confusion, given the response from the Employment Tribunal that I have described.

[18]That Miss McDade was capable of a speedy response is shown by the fact that she lodged the Notice of Appeal with the Employment Appeal Tribunal on 30 November 1999, only one day after she had been told the day before, 29 November, by the Employment Tribunal that appeal had to be to the Employment Appeal Tribunal and that consideration adds some weight to the possibility that had only she had been told by the Employment Tribunal, by a prompt answer to her sending the so-called Appeal to them, then she could well have lodged an appeal in time with the Employment Appeal Tribunal before the expiry of the 42 days on 4 October.

[19]Thereafter there were swathes in the chronology in which neither the Employment Appeal Tribunal nor the Respondents appeared to have attached importance to the elapse of time. The Employment Appeal Tribunal, having received the Notice of Appeal on 30 November 1999, did not even acknowledge its receipt until 6 January 2000. The Respondents took from, as it would seem, 15 February 2000, one day after the Employment Tribunal's letter to them of 14 February 2000, until 22 March to answer to give the Respondents' objections to an extension of time. It is not a chronology that enables either the Employment Appeal Tribunal or the Respondents to assert with any conviction or without hypocrisy the importance of honouring time limits. Moreover, although the appeal was directed to the wrong body initially and although that usually is not regarded as being an extenuating or exceptional circumstance, the delay in the form of the Employment Tribunal's response and the nature of the response enable a justified confusion to have arisen in Miss McDade's mind or at any rate one cannot be sure that no such confusion was there. Although Miss McDade has something of a background of some legal knowledge, in these circumstances it is not, in my view, inappropriate to give her the benefit of the doubt in relation to her assertion to the Employment Tribunal that she thought the Employment Tribunal was entertaining an appeal and that she had, on that account, awaited some communication from the Employment Appeal Tribunal and did not seek leave to appeal to the Employment Appeal Tribunal. Indeed, even talk about leave to appeal to the Employment Appeal Tribunal is itself an indication of some confusion.

[20]Miss McDade does her position no good at all by going on at inordinate length and in extravagant terms as to allegations of duress, fraud, corruption, criminality, cover-up on the part of a number of firms of Solicitors, the Bar Council and a related lack of independence in the judiciary, up to and including the House of Lords, and involving also one or more political figures. But such extravagant terms and such lengthy address are not, although she almost persuaded me to the contrary, of themselves a good ground for refusing an extension of time. The Abdelghafar case, a summary of which she provides in her skeleton argument, raises the three questions: what is the explanation for the Default? Does it provide a good excuse for the default? Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time? The explanation for the default which she gives is that she was in error in sending the Notice of Appeal to the Employment Tribunal and that that error was not clarified by that Tribunal. Indeed, that the response of the Employment Tribunal compounded the error by suggesting ultimately that there was an existing appeal. Does that provide a good excuse for the default? No, it plainly does not, but on the other hand there is, as I have said, a degree of confusion possible to have been caused by the Tribunal's response. Are there circumstances which justify the Tribunal taking the exceptional step? Well, here, in my view, the very fact that there have been considerable delays by the Employment Appeal Tribunal and the delay which I have referred to on the part of the Respondents do make it difficult for me to take a stringent line on the passage of time. Moreover, I bear in mind that the discretion which is conferred in these matters, as the Abdelghafar case itself indicates, is a very flexible discretion and that Abdelghafar itself provides only guidelines rather than some rigid rule invariably to be followed.

[21]I have so far barely considered the merits of the prospect of appeal. Such brief consideration as is usually given on such occasions to the merits of the appeal do not convince me that here there is an appeal with any great weight of prospect of success and, as I mentioned earlier in the course of the chronology, the 17 November 1998 was the date which Miss McDade herself specified as the date of dismissal. But I am not truly in a position to be able to evaluate whether, in the particular circumstances of this case, an argument that the dismissal truly took place later, at a time after an appeal had been concluded, has any real prospect or not. I am troubled by the slow way in which the Employment Appeal Tribunal dealt with the matter, as I have mentioned, and I have already referred to the difficulty in taking a stringent line on the passage of time, given the Respondents' Solicitors' own delay from about 15 February 2000 until 22 March 2000.

[22]Accordingly, on the unusual background of this case, I shall extend time for lodging an appeal against the decisions both of 23 August and of 28 September 1999. I bear in mind that no great prejudice has been made out on the part of the Respondents other than, of course, the inescapable prejudice that they have to face a case that otherwise they would not have to respond to. That apart, no particular prejudice is shown and I extend the time for lodging an appeal, as I have mentioned, until 30 November 1999, thereby validating both.