MR AHMED ZAHER v IMPERIAL COLLEGE OF SCIENCE, TECHNOLOGY AND MEDICINE [2000] UKEAT 508_00_0610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 508_00_0610Case No Appeal No. PA/508/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR AHMED ZAHERAPPELLANTIMPERIAL COLLEGE OF SCIENCE, TECHNOLOGY AND MEDICINERESPONDENT
Before
Mr Justice LindsayDate 6 October 2000
[1]APPEARANCES For the Appellant MS HASNA ZAHER Representative For the Respondent CAROL DAVIS (of Counsel) Instructed by Ms L Lindsay Imperial College of Science, Technology and Medicine The Sherfield Building Exhibition Road London SW7 2AZ MR JUSTICE LINDSAY (PRESIDENT) I have before me the Appeal of Mr Ahmed Zaher in the matter Zaher v The Imperial College of Science, Technology and Medicine . Mr Zaher appeals against the Registrar's Order refusing to extend the time for the lodging of a Notice of Appeal by him. Before me today Mr Zaher has been assisted by his daughter, Ms Hasna Zaher, and also has spoken direct on his own behalf.[2]He has no great command of English although he has plainly understood what the other side has said in the course of the hearing in the sense that he has had the opportunity to reply and has replied to it. I find his English, although rudimentary perhaps, thoroughly understandable. The College has been represented by Ms Davis.[3]It is necessary to say something of the chronology of the matter. On 16 May 1999 Mr Zaher lodged his IT1 claiming unfair dismissal by way of constructive dismissal and breach of contract. He had been a "Cleaner/Labourer" in the Catering Department at Imperial College.[4]On 15 June 1999 the College, by its IT3, answered the IT1 claiming that Mr Zaher had not been dismissed but rather had chosen to resign. Constructive dismissal was denied.[5]On 29 September 1999 there was a hearing at London (North) under the chairmanship of Mr C A Carstairs. It was a full 3 person panel that heard the matter. In case Mr Zaher has any lingering doubts on the subject, I add that so far as I know Ms L Lindsay, who appeared as the College's Employee Relations Officer at that time, is no relation of mine and I have never knowingly met her or communicated with her, that notwithstanding the fact that her surname is same as mine.[6]On 28 October 1999 the Tribunal's decision was sent to the parties and the unanimous decision of the Tribunal was that the Applicant's complaints of breach of contract and unfair dismissal failed. As the decision was sent to the parties on 28 October, the 42 days prescribed for the lodging of a Notice of Appeal began to run, and on 9 December 1999 the period prescribed by the Rules for the lodging of a Notice of Appeal expired.[7]On 13 December 1999 Mr Zaher managed to apply for a Review. It is clear that he was at any rate sufficiently aware of precisely what had gone on in order to be able to compose an Application for a Review.[8]On 13 December, there was the Application by letter for the Review; on 23 December the Chairman sent to the parties his decision on the Application for a Review, which was that the Review was declined on the ground that it had no reasonable prospect of success.[9]On 19 April 2000 Mr Zaher signed a Notice of Appeal and it was received by the Employment Appeal Tribunal on the same day. Then on 27 April the Employment Appeal Tribunal told Mr Zaher that he was 132 days out of time and asked whether he wished to apply for an extension of time.[10]On 2 May Mr Zaher wrote a letter which was taken to be an Application for an extension of time and gave some reasons which in his view would make a case for an extension of time. Then, as is its practice, the Employment Appeal Tribunal sought the views of the other side, the College in this case, and on 5 June the College indicated that it opposed any extension of time and on 26 June Mr Zaher wrote back purporting to answer the College's opposition.[11]On 30 June the Registrar made an Order which includes the following:
"AND UPON FURTHER CONSIDERATION of the Judgement given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS with special attention given to page 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 no exceptional reason why an appeal could not have been presented within the time limit laid down by 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"[12]On 3 July a sealed copy of that Order was sent to Mr Zaher and the letter sending it said this inter alia :
"If you wish to appeal against the enclosed Order you should do so within 5 days of the seal date. This can be either in writing or by telephone, although if you choose to notify us by telephone we would be grateful to receive written confirmation as soon as is possible thereafter."
And there was a prompt answer because on 5 July Mr Zaher indicated a wish to appeal against the Registrar's Order. There is a letter from him saying:
" I would like to Appeal against the enclosed Order, thanking you for your time. Yours faithfully MR AHMED ZAHER"
[13]That is the chronology of the matter. Ms Davis draws attention to the Employment Appeal Tribunal Practice Direction 3(5) which says:
"In determining whether to extend the time for appealing particular attention will be paid to whether any good excuse for the delay has been shown and to the guidance contained in the decisions of the Employment Appeal Tribunal, as recently summarised in the case of (and then there is a reference to AbdelGhafar) United Arab Emirates v Abdelghafar [1995] ICR 65 "
She also refers orally to paragraph 6 of that:
"It is not usually a good reason for late service of a Notice of Appeal that an Application for legal aid has been made but not yet determined or that support had been sought from but has not been yet provided by some of other bodies, such as a Trade Union or the Equal Opportunities Commission or the Commission for Racial Equality."
[14]Ms Davis' Skeleton Argument then turns to an unexceptionable summary of a number of points made by the AbdelGhafar case which I need to refer to. That is in her paragraph 6(1). She says:
"the interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals."
[15]She adds that an extension of time is an indulgence requested from the court by the party in default, that there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or the importance of compliance, that time limited for instituting an appeal will be extended only in "rare and exceptional cases", that the appellant must establish that he has provided a "good excuse" for his default and that explanations that will not excuse the appellant's delay include ignorance of the time limit, oversight of the passing of the time limit due to pressure of work or due to the existence of an application for advice or support from a legal representative or some other body. Each of those submissions as to the state of the law is supported by a particular page and letter reference to the AbdelGhafar case. AbdelGhafar has more recently been approved in the Court of Appeal in Aziz v Bethnal Green [2000] IRLR 111 which recognises that it is not improper for the Employment Appeal Tribunal to continue to take a somewhat stricter line in relation to lateness and failure to comply with the Rules than has sometimes been the Court of Appeal's own practice.[16]There have been many cases where Notices of Appeal have failed to be granted an extension of time when the period of delay is considerably less than the very large period we are here talking about. Indeed, there are cases where Notices of Appeal have failed to attract an extension even when they have been only one day late.[17]To return to the case at hand, Mr Zaher, in my view, provides no good reason for the exercise of the discretion in his favour. The delay here is some 132 days, a massive period of delay and, of course, when one has a period of delay as long as that, then the case that is needed to justify an extension becomes even more difficult to show. I have seen his letter of 2 May but it provides in my view no good reason for lateness. He says:
"I have been to so many people and none of them have been willing to help me. Some people also tried to take advantage of me, just because I don't speak English very well. The people that have helped are my children. This is the reason that I was late replying to you. The Lord Irvine of Lairg advised me to appeal on the grounds of legal impropriety."
And Mr Zaher has emphasised today, orally, that he has been to a number of people, including his MP and others, seeking assistance in relation to his case. He claims that nothing was done to assist him and that he needed assistance and, as that letter shows, he eventually got it from his children. But what I have failed to understand is why, with the 42 days coming to expire, he failed to turn to his children sooner. It is quite plain that within the 42 days he was able to understand matters and take some steps because within that period or thereabouts the Application as to a Review was lodged. In other words, Mr Zaher was able to take the wrong step and it is hard to see why he should not have been capable of taking the right step.[18]The Notice of Appeal that did eventually emerge has, of course, printed as its item 6:
"The grounds upon which this appeal is brought are that the tribunal erred in law in that (here set out in paragraphs the various grounds of appeal) And what then follows is this: "
I am appealing to prove that I was dismissed unfairly, and was sacked without pay and notice. I have payslips to prove it. I also want £144.38 back because they took that away for Tax. Date 19 April 2000 Signed AHMED ZAHER" It is the kind of simple and straight forward Notice of Appeal (leaving aside whether any error of law is there disclosed) that could, one would think, be composed after relatively short consideration. The Employment Tribunal decision was only some 3½ pages long and so consideration of it could not take any truly considerable length of time. It is not a Notice of Appeal redolent of careful deliberation and it is hard to see, had Mr Zaher attended to it, even recognising his difficulties with English and his difficulties with obtaining advice from others, that some such could not have been prepared, at any rate with his children's support if no other support, within the 42 day period. I do not find it possible to regard the reasons I have heard on Mr Zaher's part to justify an extension of time as being exceptional in the way that the AbdelGhafar case requires and Ms Davis draws attention to the fact that, initially at any rate, Mr Zaher was represented by solicitors. I imagine they must have dropped out shortly after the Tribunal stage, after news was received that the case was lost, but, at any rate, they seemed to have been in play for a while.[19]Mr Zaher obviously feels very strongly about the underlying merits of the case and has addressed me with some passion on the subject but that hardly excuses delay. Indeed, where one finds a person who has a passionate belief in the rightness of his own case one can expect him to proceed promptly rather than to find his allowing a massive delay of 132 days to arise, as was the case here.[20]It is only a small feature in these cases as to whether the appeal would be likely to succeed. Obviously it is not appropriate to go at any length into the merits of the underlying Appeal because otherwise one would get into a position in which one had to hear the Appeal merely in order to decide whether there should be an Appeal. But the grounds that I have stated as completed in the Notice of Appeal by Mr Zaher really do not seem to point to any error of law and, having looked at the decision briefly, one cannot say that this is, in any event, an Appeal which can clearly be seen to be one likely to succeed.[21]In other words, it may well be that to not give Mr Zaher an extension of time is really almost to be cruel to be kind because it may well be that had I given him an extension of time it would merely be to have created a false hope and to draw out distressful proceedings longer without any concomitant real prospect of success.[22]I have not paid any great attention to the merits of the Appeal because, as I say, that is only a small factor, but, in so far as it is any factor, it does not assist Mr Zaher. All in all, at it seems to me, the Registrar's Order can not be faulted and, looking at the matter afresh myself in the light of what I have read and heard today, I, too, can only describe the matter as one in which the requirements of the AbdelGhafar case are not satisfied. No good reason for an extension of time is shown, especially in the light of the massiveness of the delay, and accordingly I must dismiss the Appeal.[23]I just add to my judgment that after the judgment was given Mr Zaher handed up to me 3 copy letters. One, of 10 January, from Mrs T J Mason, Regional Chairman, to Mr Zaher, a second letter, again from Mrs Mason, of 21 December 1999 to Mr Zaher, a third, 18 February 2000, from the Judicial Group Division 5 of the Lord Chancellor's Department to Mr Zaher and, lastly, a letter of 17 April 2000, from Lord Irvine of Lairg to Mr Zaher. Nothing in them in my view is relevant to the question whether an extension of time should be granted. To that extent, therefore, whilst I have read them, they do not require me to alter anything I earlier said.