MS K DYER v LISTER AND HAMPTON LTD [2000] UKEAT 53_00_1011

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 53_00_1011

Case No Appeal No. PA/53/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS K DYERAPPELLANT

LISTER AND HAMPTON LTDRESPONDENT

Before

Mr Justice Charles

Date 10 November 2000

[1]APPEARANCES For the Appellant MR JOHNSON (Solicitor) Instructed By: The Employment Law Centre Ltd Wembley Law Chambers 38 Napier Road Wembley Middlesex HA0 4UA For the Respondents MR BRITTON (Solicitor) Instructed By: Messrs Turner & Debenhams 6 St Peters Street St Albans Hertfordshire AL1 3LG MR JUSTICE CHARLES : I have before me an appeal from an order of the Registrar dated 13 March 2000 which refused an application by the proposed Appellant for an extension of time to appeal against an Order of an Employment Tribunal sitting at London (North) on 3 November 1999. The Extended Reasons for that decision were sent to the parties on 25 November 1999.

[2]Rule 21 of our rules applies and therefore I have a discretion as to whether or not I should hear this appeal myself or whether I should direct that it comes on before a full Tribunal. I shall return to the exercise of that discretion.

[3]In Aziz v Bethnal Green City Challenge Co Ltd

[2000] IRLR 111

, the Court of Appeal has recently decided that it is not an error of law for this Tribunal in considering whether or not to extend time for appealing to follow the approach set out by Mummery J in United Arab Emirates v Abdelghafar

[1995] IRLR 243

. In that case Mummery J, having gone through principles derived from Employment Law cases and other cases, summarises their application and the approach to be taken by the EAT in paragraphs 26 to 30 of the judgment.

[4]Today an was argument presented on behalf of the Appellant that a different approach to that set out in Abdelghafar should be taken. That argument was advanced by reference to cases outside the employment field and thus cases not dealing with an extension of time for an appeal to the Employment Appeal Tribunal pursuant to its rules.

[5]It seems to me that the Aziz case is the answer to those submissions. In any event, in my judgment, the reasoning in the Aziz case applies to that argument advanced on behalf of the Appellant and has the result that it should be rejected. In particular, what I am considering is an extension of time for appealing and thus what can be described as a "round two access" to a Tribunal. Further I am dealing with a period which is fairly lengthy and also one which starts from receipt of Extended Reasons rather than the hearing itself.

[6]It follows in my judgment that I should apply the approach laid down by Mummery J in Abdelghafar . That approach is summarised in paragraph 30 of that judgment where Mummery J says this:

"Thus, the questions must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are: (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? and (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time?"

That summary relates back to the three matters Mummery J raises in paragraph 27 to 29 of his judgment. The first paragraph refers to the rules and ends with the sentence, cited with approval by Sir Christopher Staughton in the Aziz case, which is as follows:

"The limits will, therefore, only be relaxed in rare and exceptional cases where the Tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules."

[7]That sentence indicates that this Tribunal takes a strict approach to extensions of time. In that sense it can be said to have differences to the approach taken to the exercise of a discretion to extend times in other circumstances both by this Tribunal, Employment Tribunals and other Courts. In my judgment it is a misreading of that sentence and of the guidance given by Mummery J to say that there must be a reason for the delay which justifies a departure from the time limits. Rather it is saying that there must be a reason which justifies a departure from the time limits, and thus an extension (see, for example and by analogy Secretary of State for Trade and Industry v Davies [1996] 4 AER 289.

[8]The second paragraph of the guidance is in paragraph 28 of the judgment and the first two sentences are as follows:

"The Tribunal's discretion will not be exercised, unless the appellant provides the Tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the Tribunal that there is a good excuse for the default, an extension of time may be granted."

The paragraph then goes on to identify the difficulties in satisfying this Tribunal that there was a good excuse.

[9]There are two limbs to that approach, the first is a requirement that a full and honest explanation be provided. If that is not provided then one does not go to the next stage. The second refers to the position if this Tribunal is satisfied that there is a good excuse and then identifies that in those circumstances an extension may be granted.

[10]The third paragraph in the guidance starts with a sentence: If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion and then Mummery J lists a non-exhaustive list of factors.

[11]On my reading of that guidance and having regard to the decision in the Abdelghafar case, the explanation referred to under that third head does not have to be a good explanation. What it has to be is a full and honest explanation. If that were not the case, the decision in the Abdelghafar case in the exercise of the discretion pursuant to the approach set out therein would not have been made because it was found there that the reasons offered did not provide any good excuse. In the exercise of the discretion under the third head, a number of matters fall to be taken into account and, although at that stage the merits of the appeal are usually of little weight they may become relevant.

[12]I therefore turn to consider the reasons given for the delay. The delay was one day. The Notice of Appeal should have been received here on 6 January, it was in fact received on 7 January. The reasons for this default are set out in a letter dated 7 January from the Employment Law Centre, who had represented the Appellant below. Chronologically those reasons are as set out below.

[13]It is said that on 29 November the Employment Law Centre received the Extended Reasons. It then goes on to say that they were posted to the Appellant for her remarks and observations. A point made on behalf of the Respondent is that it is not said when they were posted and that information has not been provided today.

[14]The explanation goes on that Mr Johnstone, who was representing the Appellant, made a diary entry in his personal diary that the appeal was to be lodged by 4 January. It then goes on to say that he prepared the grounds for the appeal and they were electronically logged on to the computer system. A date is not given for when he so prepared them and all he could tell me today was that they had been prepared some time before he went on holiday on 20 December 1999.

[15]The explanation continues with an assertion that the Appellant had been asked to return her comments within 14 days but, due to the Christmas post, her comments were not received until 21 December 1999. As the date upon which the Extended Reasons were sent to the Appellant have not been identified and the instructions given by the Appellant today were that she dealt with the matter promptly, that part of the explanation is not completely full. It is however, dealing with an early stage of the process.

[16]A point made on behalf of the Respondent is that if one looks at what occurred at this stage, it demonstrates bad management because, as must have been the case, Mr Johnstone was aware that from approximately 21 December 1999, through to approximately the date when the appeal had to be filed, there were going to be holiday difficulties and potentially computer difficulties (to which I will refer) and if the matter had been dealt with efficiently those difficulties would have been factored into the steps taken concerning the institution of an appeal.

[17]Naturally there is force in those submissions. Equally, when somebody has missed a time limit it is almost inevitable that submissions of that type can be made as to the steps taken in meeting the time limit. Apart from the problems that occurred later, in my judgment the steps taken up to 21 December were reasonable ones to meet the time limit.

[18]What then happened was that Mr Johnstone, not having received the Appellant's comments before 20 December when he went on holiday, telephoned the Appellant on Christmas Eve to ask her what was happening. The Appellant told him that she did wish to appeal and that she had already submitted her comments to his office. His office was closed from 23 December until 4 January save that there was a temporary casual worker attending the office.

[19]Mr Johnstone rang the office on 29 December, again during his holiday, and spoke to the temporary worker. That demonstrates a conscientious attempt to comply with the time limits. At that stage the computer system of the office had been shut down to seek to avoid millennium bug problems. A letter was sent by the temporary worker to this Tribunal which is dated 29 December. It is common ground that that letter does not constitute a Notice of Appeal because it in fact seeks a review.

[20]I pause to add that a review was sought in this case but I was told, and accept, that it was instituted by the Appellant herself. I accept that what Mr Johnstone was asking the temporary worker to do was to lodge an appeal, not to bring a review and unfortunately for him and the Appellant the temporary worker simply got matters wrong. If that worker had said in that letter that the Appellant wished to appeal and the detailed grounds are stuck on our computer, I feel confident we would not be here today.

[21]The next step was that Mr Johnstone telephoned his office on 4 January and was told (he does not say by whom) that the appeal had been sent off and as he was in meetings and in a Tribunal until 6 January he took no further action. The letter of explanation goes on to say that Mr Johnstone was contacted by his secretary on 6 January and informed that the casual worker had sent off an appeal on 29 December.

[22]It was in those circumstances that after Mr Johnstone returned on 6 January and it was discovered that a proper appeal had not been lodged, that the appeal as taken off the computer system was delivered here one day late.

[23]In the Skeleton put in on behalf of the Respondent, in addition to the point that the problems flow from bad management, which I have dealt with the following points are raised namely that it is not said when the written decision of the Employment Tribunal was posted to the Appellant or when Mr Johnstone prepared the grounds for appeal or why the computer was not accessible until 4 January.

[24]I have already dealt with the first of those additional points. As to the second, Mr Johnstone prepared the grounds of appeal before he went on holiday and I think nothing turns on the actual date when this was done. As to the third, as I understand it, the explanation for the default is not related to non-accessibility to the computer before 4 January, save in the sense that the Employment Law Centre was closed but is that when Mr Johnstone checked on 4 January, he understood that the appeal had indeed been sent off.

[25]In my judgment the points raised by the Respondent that this is not a full and honest explanation are not ones which lead to that conclusion. In my judgment the explanation offered by Mr Johnstone is a full and honest one for which he, before me, has taken appropriate blame.

[26]The next question is whether or not it provides a good excuse for the default. It is always difficult to present an argument which shows that a delay was unavoidable or, in other words, that it was unavoidable that the appeal was served late. It follows that in my judgment that is not what is meant by a good excuse. What one has to consider is whether, in general terms and looking at the whole of the period for lodging an appeal, the reasons are ones which excuse the default.

[27]In my judgment here sufficient or adequate steps were taken before Christmas to ensure that the time limit was met, even though the holiday period and computer problems were known to the Appellant and her advisers. There was then a catalogue or sequence of accidents but it does seem to me that a feature of this case, which makes it different to others, is that the person responsible on behalf of the Employment Law Centre was taking active steps when he was on holiday to try and meet the time limit and the fact that he took those active steps is demonstrated by the letter that was sent on 29 December 1999, albeit that the content of that letter is not what Mr Johnstone would have written or indeed anyone properly familiar with the procedure for an appeal would have written.

[28]It follows, in my judgment, that in the terminology of the second part of Mummery J's approach that the explanation does, in the circumstances of this case, provide a good excuse. In any event, in my judgment, there is an explanation which warrants one going on to take into account other factors as set out in the third part of his approach.

[29]I pause to comment that the fact that I have found there to be a good excuse does not, of itself, mean that there should be an extension of time.

[30]At the final and balancing stage of the exercise of discretion, a number of factors are to be taken into account and comparisons are not being made of like with like. Overall one is considering the balance of injustice or hardship to the two sides by allowing or refusing an extension. If an extension is allowed the Respondent will have to face an appeal on its merits. If it is refused the Applicant will not be allowed to pursue the matter further. The delay was a short one.

[31]It seems to me that in this case a factor that is relevant is the nature and merits of the appeal. That brings me back to the question as to whether or not I should exercise the discretion myself, having regard to Rule 21, or whether I should say that the issues relating to the merits of the appeal should be dealt with by a full Tribunal either(i) on the hearing of this appeal, or

(ii) on a preliminary hearing of the proposed substantive appeal. I have not found this an easy question.

[32]However, it seems to me that in the circumstances of this case and as the matter has been fully argued before me that it is open to me to have regard to the nature and merits of the appeal in determining whether or not to extend time and that I should do so on my own.

[33]The Tribunal found that the matter complained of by the Appellant was not gender specific. That part of their decision is not, as I understand it, raised in the proposed appeal. What is at the heart of the proposed appeal is an argument that the Tribunal failed to consider the effect processing pornographic material may have on a male and a female and that part of the Notice of Appeal goes on to say:

"Although we do not have the evidence in detail at hand we have read various papers that quite clearly state that it is much less likely that a male will be offended by nude, semi-nude or pornographic material than a female."

The penultimate paragraph of the Notice of Appeal goes on, in this form:

"We are currently awaiting various statistics on the purchasing of pornographic material and we have subcontracted a researcher to provide substantial evidence on this. We accept that no such evidence was put before the Tribunal but it was not considered necessary at the time as it was thought that any reasonable Tribunal would have accepted that pornographic material is more offensive to females than it is to males. One only has to take a walk through Soho in the red light and soft porn areas to realise that there are very very few female customers seeking pornographic material whereas the vast majority are men."

[34]Mr Johnstone, on behalf of the Appellant, wrote to this Tribunal identifying a simplification of the Notice of Appeal and he has helpfully outlined the nature of the argument that he would wish to put on behalf of the Appellant on the appeal. It is, as I understand it, based on the point that it was thought by him and the Appellant that any reasonable Employment Tribunal would have accepted that pornographic material is more offensive to females than it is to males and that therefore the Employment Tribunal in this case should have done so without evidence to that effect being put before it. Alternatively Mr Johnstone went on to say that as evidence relating to the point was not put by either side the Employment Tribunal should have called upon the parties to give that evidence.

[35]It follows from what I have said that this is an appeal which is based upon(a) the proposition that any Employment Tribunal properly directing itself would have concluded that women would have found the pornographic material more offensive than men and therefore have found less favourable treatment, or

(b) propositions, either that an Employment Tribunal of its own motion should have called for more evidence or that the Appellant should be entitled to put in additional evidence

[36]In my judgment those grounds are extremely weak. Indeed in my view this is a case where it is plain that the proposed appeal will not succeed.

[37]Having regard to(a) the test set by Mummery J, and

(b) the comment on it by Sir Christopher Staughton in the Aziz case, and notwithstanding the points that (i) I have accepted that there was an excuse for the delay which warranted the exercise of the discretion to extend time, and (ii) the delay was very short I have decided that having regard to the factors then to be taken into account and, in particular, the points I have made as to the merits of the appeal, time for appealing should not be extended and this appeal should be dismissed.

[38]Additionally, I have decided that it is appropriate on the facts of this case for me to reach that conclusion which is in line with a conclusion on a preliminary hearing that the proposed appeal raises no reasonably arguable points of law without adjourning so that this point can be considered by a full Tribunal. In that context it seems to me that the relevant points are points of law, rather than points as to which the industrial expertise of Members would be likely to provide significant added assistance. It is, of course, the case that the views of Members are always helpful to the judges sitting in this Tribunal but in this case it seems to me that the issues on the proposed appeal are not ones as to which the expertise of those with experience in industry would be of significant importance.

[39]Accordingly, for those reasons I will dismiss this appeal. Costs Application