MR T A MILLER v BRITANNIC TRAVEL LTD [2000] UKEAT 183_00_3010

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 183_00_3010

Case No Appeal No. PA/183/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR T A MILLERAPPELLANT

BRITANNIC TRAVEL LTDRESPONDENT

Before

Mr Justice Charles

Date 30 October 2000

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondents MR L JONES (of Counsel) Instructed By: Mr D Read Messrs Bowles & Co Solicitors 18 Church Street Epsom Surrey KT17 4QD MR JUSTICE CHARLES : I have before me today an appeal by Mr Miller against an Order of the Registrar which was dated 22 May 2000. The Respondents to the appeal are a company called Britannic Travel Ltd.

[2]The Order of the Registrar was one which refused an application for an extension of time made by Mr Miller for presenting an appeal against a decision of an Employment Tribunal. I hear this appeal under Rule 21. In my judgment it is correct that I deal with the matter myself rather than sending it to a full Employment Appeal Tribunal.

[3]Mr Miller has informed this Court that he did not intend to be present today. I record for anyone reading this judgment that today is a day of extreme travel difficulties. But Mr Miller having informed the Court before the existence of those travel difficulties were known that he was not going to attend, I have proceeded in his absence and had regard to the written submissions he has made. The Respondent company have been represented today by Counsel who provided outline submissions in writing before attendance.

[4]In this case it is relevant to have regard to the chronology. The decision of the Employment Tribunal was sent to the parties on 17 December 1999. The Notice of Appeal that is before me is a document dated 2 February 2000 and it is a document in which the grounds of appeal run to four pages. That document was received by this Tribunal on 15 February 2000. It was sent by post; the postmark being 14 February 2000 (the record of the postmark is in my papers).

[5]By a letter dated 22 February 2000, Mr Miller applied for an extension of time and, I pause before reading his letters to record that it is clear that at times during these proceedings he has received advice from a Solicitor. The letter dated 22 February 2000 is in the following terms:

"Dear Sir We are applying for an extension of time and would like to apologise for its lateness the reason is set out as follow: 1 The applicant along with his family has been ill with a severe case of the flu virus during that period of time (see attached doctors note that was handed in to the applicants employer). Please note that after the date noted on the certificate the applicant was still suffering from night fever and was unwell to go through the notice of appeal with his representative. 2 That the Tribunal judgment was given during the Christmas season and was not received by the applicant until 29 Dec 1999." "

We were also not aware that the Holiday periods along with the bank holidays and weekends were counted in the 42 days. Please accept our apology once again and hope we can proceed to the next stage."

[6]The next stage was the Order of the Registrar which is dated 22 May 2000. By a letter dated 30 May 2000 Mr Miller appealed against the decision of the Registrar refusing an extension of time. That letter is in the following terms:

"Dear Sir or Madam: As per our telephone conversation I am appealing against the order based on the following reasons. 1 That the notice of appeal would be considered for a good reason for being late as per Rule 3 (1)The main consideration was due to sickness and a doctors certificate was enclosed , this was not even given consideration. I believe it to be a good and reasonable excuse seeing over 20,000 people died from it. 2 The appeal was only 5 days late as it was submitted on the 3 rd of February and not as stated in the order. 3 I only mentioned that for a legitimate document there should be no reason for ambiguity as per 42 days should be specific. For example (42 working days, 42 days including weekend and holidays). This was not the main point of my appeal notice, but this was what was taken out and used only when the main reason for my appeal was due to myself and my representative being taken ill with the flu virus . I only mentioned the time limit because it seems opened to interpretation . 4 Seeing I made the call within 5 days of the order, I now wish that the main point of my notice of appeal would now be given the consideration of the EAT. That is I was taken ill with the flu virus."

His next letter is dated 12 July 2000 and it is in the following terms:

"Dear Sir or Madam I am very disappointed by the way my case has been handled since its inception to the Industrial tribunal and then, subsequently to the Employment Appeal Tribunal. Firstly when I applied to the Industrial tribunal I applied to the South. I was then told, it should have been the North, they verbally told me, they would forward my details to that office, since then I have been receiving two sets of information. I ignored the ones from the south office and followed the verbal advice I had been given. Recently I received a letter from the south office saying "if I wish to still pursue this case" that was over 6 months ago – what is going on, don't they liase with each other. I will be complaining to the IT directly. Secondly on the 27 January I sent a fax to your office appealing the Industrial tribunal decision. It was late that afternoon. I called on the 2 February to see if it was received. I was informed that it would have gone to the relevant individual, to make sure I sent another copy on the 2 nd of February. I was subsequently informed that my application was late, and I would need to apply for a notice of appeal without checking and going on the basis that EAT clerk was right I did just that. On going over the details with a Solicitor, in order to make representation for the Appeal to the registrar. It was pointed out that, the fax confirmation was in fact within the 42 days allotted. I have enclosed these copies for your perusal. Please I would appreciate a speedy remedy for this anomaly, I am still pretty much confused about the entire situation."

Finally, on 27 October 2000 Mr Miller sent a fax to this Tribunal which is in the following terms:

"On going over the documents sent to me on the 8 August 2000 I noticed that it said the Appeal from registrar's order stated that I was out of time, that was not the case as I was following explicit instructions from Alan Mendham. He said "

Fax me the copy, then post the original later", which I did, so how could I be out of time. As stated previously I am totally disappointed in the way my case has been handled from the inception. If I was told on the EAT instruction to fax a copy of my appeal then post it later, as in your letter outlining the post mark that would be totally irrelevant seeing it was faxed on time in the first place. As a final submission I am asking the judge to re-examine the facts. It was significant for Mr Mendham to have submitted my fax copies, which he did not do, but submitted the letter that was posted instead and using the post mark, it would seem as if I was out of time, in both instances he did that. I cannot understand why, when he was the one on both instances told me to fax it then post the original later. Not knowing the law I assumed I was out of time, going by his submission, which I did have a valid reason, if I was late anyway, being sick with the flu. I would like you to re-examine the facts. I did what I was told by the EAT, how in the world could I have been late." Mr Mendham was an Associate employed at this Tribunal but he is no longer employed here.

[7]Turning to the enclosures with that correspondence:(a) firstly the medical certificate shows Mr Miller as suffering from something (which I am afraid I cannot read, but it looks like pharyngitis) from 4 January to 7 January 2000 and that he was unable to follow his occupation during that period, and

(b) there are two fax transmission reports. The first is a transmission report from an organisation called "Carlson Wagon IT TUL" with a fax number of 0171-831-4576 indicating a fax sent to the fax number of this Tribunal including one page. That is dated 27 January and has a time of 16:39. The same applies to a fax received on 2 February with a time transmission of 16:50.

[8]To-day I have caused further research to be made into our records. The fax journal kept here does not show a receipt from the above-named organisation or fax number on either 27 January or 2 February. Our journal shows some faxes from unidentified sources. On 27 January there is one which was received some time after 5 o'clock from an unidentified source, having one page.

[9]Going forward in time to the period in May following the decision of the Registrar, we have a record of a telephone conversation between Mr Mendham and Mr Miller on 31 May but have no record of a fax being received thereafter, enclosing his appeal against the Registrar's Order. I mention that at this stage simply to complete the picture as to our research concerning faxes received from Mr Miller.

[10]Counsel for the Respondent company, in my judgment very properly, today said that the Respondent company was taking no point on the appeal against the Registrar's Order being out of time and I have treated it as being in time. No issue therefore was pursued as to whether or not a fax sent on 31 May would, in any event, have been in time.

[11]Returning to the chronology, the faxes and the allegations made by Mr Miller as to faxes. The first point to be made is that the Notice of Appeal we have received is dated 2 February but was received in a letter posted on the 14 th . A second point to note is that that document runs to some four pages and the fax transmission reports relied on by Mr Miller indicate that only one page was faxed to us.

[12]Additionally, the timing of the allegations as to the sending of faxes is, on the face of it, curious because in Mr Miller's first letter (dated 22 February) no mention is made of any fax having been sent containing a Notice of Appeal. The next letter refers to a fax on 3 February but not one on 27 January which would have been in time. It is only when one gets to the third letter that there is a reference to a fax being sent on 27 January.

[13]I now turn to the approach that this Tribunal adopts in these cases.

[14]It has recently been confirmed by the Court of Appeal in Aziz v Bethnal Green City Challenge Co

[2000] IRLR 111

that this Tribunal did not err in following the approach set out in United Arab Emirates v Abdelghafar

[1995] IRLR 243

, to the question whether time for appealing from an Employment Tribunal to this Tribunal should be extended.

[15]The Abdelghafar case is the case referred to in the Registrar's Order and in this Tribunal's Practice Direction. In Aziz the Court of Appeal therefore recognised that the test or approach in Abdelghafar , which is a more restrictive one than is applied in other circumstances when a judicial discretion falls to be exercised as to extending time, is a correct one. Equally, as was made clear in the Abdelghafar case, this Tribunal has a discretion to extend time and it must exercise that discretion judicially.

[16]A difference in the approach to the exercise of the discretion to extend time for appealing from an Employment Tribunal to this Tribunal to that exercised in other jurisdictions or circumstances is shown by point 1 in the approach set out by Mummery J, the then President of this Tribunal in Abdelghafar , namely that an extension will only be granted in rare and exceptional circumstances where this Tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules..

[17]Point 2 of Mummery J's list shows that a person who seeks an extension of time to appeal should give to this Tribunal a full and honest explanation of the reason for non-compliance with the time limit. Points 1, 2 and 3 of Mummery J's list show that, even if a good reason for the delay is given, other factors may still result in an extension of time not being given. Equally, as is shown by the Abdelghafar case itself, there can be cases where an extension will be granted even when no good or adequate reason is shown for the delay.

[18]I turn first to the medical reasons relied on by Mr Miller for seeking an extension of time. In this context I note that Mr Miller has said the effect of his illness went on after the last date in the doctor's certificate. But, on any view, his illness only covered a part of the relevant time limit and on the approach taken in Abdelghafar , it seems to me that it falls well short of providing an adequate reason for allowing an extension of time.

[19]A point made clear by Mummery J in Abdelghafar is that that it is incumbent upon an Applicant for an extension of time to provide this Tribunal with a full and honest explanation for the reason for non-compliance. This flows from the point that time limits are there to be obeyed and that the Applicant is seeking an indulgence.

[20]Whether or not the Notice of Appeal was sent on 2 February or the 14 th , it would be out of time. An issue, of course, arises as to whether or not a Notice of Appeal was sent which satisfies our Rules on 27 January. As I have already indicated, we have been unable to identify the one page document referred to in the fax transmission report and which Mr Miller alleges was faxed on that day

[21]It is apparent from what I have said that Mr Miller has not provided us with a copy. It is also clear from his own letters that Mr Miller has had the benefit of advice. If Mr Miller was seeking to rely on the document enclosed with the fax he says was sent on 27 January, in providing us with a full and honest explanation, he would either have provided a copy of the letter or at least have described what was in that letter. That is particularly so having regard to the chronology and the fact that the Notice of Appeal is dated 2 February.

[22]The first fax he refers to in his correspondence was, he says, sent on 2 February. But the fax transmission report again indicates that it was only one page in length.

[23]One is then left with considerable doubt and confusion as to what, if anything, was sent by Mr Miller, by fax, on 27 January or 2 February.

[24]Mr Miller says, in correspondence, that he only sought an extension of time because he was told that was the appropriate thing to do by an official of this Tribunal. However, it is clear that he has taken advice and if those advising him were of the view that the document sent on 27 January was a Notice of Appeal, one would have expected him to put forward an argument that he had met the time limit. I therefore ask myself, has Mr Miller given a full and honest explanation of the reason for non-compliance. As far as I understand it from his latest fax that reason is that he was told by an official at this Tribunal to fax the Notice of Appeal and then send the hard copy later.

[25]In my judgment the above examination of the position demonstrates that Mr Miller's explanations and assertions concerning the faxes he alleges have been sent to this Tribunal falls far short of a full and honest explanation.

[26]I have added to the matters I have considered the point whether or not there was a Notice of Appeal in time, although Mr Miller has not expressly advanced that argument. In my judgment there is insufficient evidence to conclude that there was.

[27]Accordingly, applying the approach that this Tribunal applies to the question of whether time should be extended, in my judgment this Tribunal has not received a full and honest explanation for the reasons for delay or a full and honest explanation as to all the steps taken by Mr Miller in respect of his wish to appeal.

[28]For the reasons I have given this Tribunal has not received an explanation which would warrant the grant of an extension of time for further consideration of other factors in the exercise of that discretion. Accordingly, this appeal fails and is dismissed. Application for Costs