MRS L FOX T/A QFCC v MR R PHILPS [2000] UKEAT 1488_99_1205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1488_99_1205Case No Appeal No. PA/1488/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS L FOX T/A QFCCAPPELLANTMR R PHILPSRESPONDENT
Before
Mr Justice LindsayDate 12 May 2000
[1]APPEARANCES For the Appellant IN PERSON For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) : I have an appeal before me in the matter Mr R.T. Philps against Mrs L. Fox trading as QFCC. The appeal is by Mrs Fox who seeks leave to lodge a Notice of Appeal out of time in respect of two separate decisions. The Registrar has declined that leave and so she appeals to me. The chronology needs to be borne in mind. In April 1997 Mr Philps lodged an IT1 claiming unfair dismissal and breach of contract.[2]On 1 August 1997 a decision was sent to the parties, following a hearing (the date of which is not given) which had the result that Mr Philps' application for unfair dismissal was struck out and so Mr Philps could proceed, if he wanted to, only on the ground of breach of contract. The reason for that was that he only had less than a year's employment and so could not pursue unfair dismissal.[3]There was then a hearing arranged to deal with the breach of contract claim. That took place on 30 September 1997 and the decision was sent to the parties on 24 October 1997. It was a decision of Mr D.B. Williams, sitting alone, at London (North). Both sides had appeared only in person and the decision was that Mrs Fox was ordered to pay £775 to Mr Philps, made up in the way that the decision describes. That, as I say, was sent to the parties on 24 October 1997 and promptly, it seems, (I have not actually got the application but it is recited elsewhere), on 28 October 1997 Mrs Fox sought a review of that decision. Then, remarkably, there was no proper answer to that application to review until 14 October 1999. On that date, in a decision of just over a page, the application for review was declined but the decision does recite that the application had been made by letter of 28 October 1997. On 25 November 1999, the six weeks allowed for an appeal against that decision as to the review expired, that is to say six weeks from 14 October 1999.[4]On 6 December 1999 a Notice of Appeal (really it was in the form of a letter but it has been treated quite fairly as a Notice of Appeal) was received at the EAT from Mrs Fox and, although its contents perhaps are not as clear as they might be, Mrs Fox tells me today (she has appeared today in person) that by that letter of 6 December she wished to indicate a Notice of Appeal as against the refusal of the review in October 1999 and also against the decision sent to the parties on 24 October 1997.[5]On 13 December 1999, in response to many letters between Mrs Fox and the Employment Tribunal, the Employment Tribunal wrote to say that there had been no good reason for the immense delay in promulgating the decision on the review which, it will be remembered, was from 28 October 1997 to 14 October 1999. What the letter said was this:
"After investigating the matter, I am sorry to say there were no valid reasons for the lengthy delay in the promulgation of the review decision. This was overlooked and you are right to be angry. I wish to apologise profusely for the poor service you have received in this instance and I am glad you have brought this to my attention. I have made a few changes to the systems in place for the promulgation of decisions to avoid this type of situation from re-occurring."
So that was the Employment Tribunal apologising, very properly, to Mrs Fox for their handling of the review side of things.[6]On 3 February 2000 an extension of time for acceptance of the Notices of Appeal was refused and very promptly Mrs Fox appealed against that decision. The decision of the Registrar of 3 February had said:
"IT IS CONSIDERED that there has been shown no exceptional reason why an appeal could not have been presented within the time limit …"
And it then went on to decline to give leave.[7]I approach the matter on the basis that Mrs Fox's letter, which is treated as a Notice of Appeal, is intended to appeal both against the review decision and the earlier substantive decision of 24 August 1997 and she has so assured me today.[8]It is true that no good reason is shown for failing to appeal against the substantive decision in the six weeks from 24 October 1997, save that, as Mrs Fox says, she wished to challenge the decision and sought a review. She had no reason, of course, to expect that the review would take such an inordinate length of time. The fact that a review has been requested and that a decision on the review is outstanding is generally regarded as not a good reason for not lodging a Notice of Appeal. But that, perhaps, is a view that can properly be taken where the application for review is attended to with all reasonable speed, or at least where there is no reason to believe that it has not been, or will not be.[9]The review was sought on 28 October 1997 and no answer was given until 14 October 1999 and I have already read the apology of the Employment Tribunal that indicates there were no valid reasons for that lengthy delay. Of course, strictly speaking, the Employment Tribunal and the Employment Appeal Tribunal are quite different bodies but Mrs Fox surely is entitled, as a litigant in person, to regard both of them as merely limbs of the same administration of justice; in that sense they may be regarded as a unity as far as she is concerned. It does seem, to put it at its lowest, remarkably distasteful if one limb of that joint body (as she would see it) is about to penalise her for a delay of 11 days, which is the delay in the review case, when another limb has taken a little short of two years simply to respond to an application for a review. I can therefore see a powerful case for not insisting on declining leave in the review side of things, where the application was only 11 days late.[10]I would therefore be inclined to extend time for leave to appeal against the review decision of 14 October 1999 but, in favour of extending beyond that, it does seem somewhat artificial to give leave merely for a review decision to be challenged, leaving the appeal against the substantive decision as beyond appeal. That seems to me to be, although logically possible, not a very satisfactory state of things and I am entitled to consider also that it is at least possible, if the Tribunal had responded in good time to her application for a review and had turned it down early, that she would then have lodged a timely Notice of Appeal. Since I cannot be sure that in such a case she would not have lodged a timely Notice of Appeal, I cannot be sure that she has not been substantially disadvantaged by the appalling delay of the Employment Tribunal in dealing with the review. I think that is a factor I am entitled to take into account.[11]Mrs Fox feels very strongly that she was not dealt justice on the hearing of 30 September 1997, when the hearing relating to contract only proceeded, and she tells me that witnesses that she could have called were not attended to; she feels very strongly a sense of grievance about the conduct of that day.[12]All in all, granted that there is a powerful case for an extension as to the review decision and given also that it is logically not very satisfactory to let the review go forward for appeal without letting the substantive decision going forward and, given the possibility that she was disadvantaged, even in her ability to appeal the substantive decision, by the failure to attend to the review in good time, I feel I am able to set aside the decision of the Registrar in this matter, to allow the appeal against the Registrar's order and extend time to 6 December 1999 for the lodging of a Notice of Appeal, as against the substantive decision and the review decision. I say 6 December because that is the date on which the letter of 3 December is stamped as having been received here, and on that basis I therefore validate both the review appeal and the substantive appeal for Mrs Fox to take them forward.