MR A RAHMAN v KUSH HOUSING ASSOCIATION [2000] UKEAT 547_00_2607

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 547_00_2607

Case No Appeal No. PA/547/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A RAHMANAPPELLANT

KUSH HOUSING ASSOCIATIONRESPONDENT

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: Ms F Kelly Messrs Kingsford Stacey Blackwell Solicitors 14 Old Square Lincoln's Inn London WC2A 3UB MR JUSTICE LINDSAY (PRESIDENT) : I have before me an application by Mr A. Rahman in the matter Rahman against Kush Housing Association. Today Mr Rahman appears in person and Mr Pullen appears for the Housing Association. Mr Rahman appeals against the Registrar's Order refusing an extension of time for him to lodge a Notice of Appeal. Mr Pullen, not surprisingly, has referred me to and reminded me of the case of United Arab Emirates v Abdelghafar

[1995] ICR 65

which is the case habitually referred to and followed in such matters.

[2]One needs to have regard to the chronology. On 30 July 1999 Mr Rahman lodged an IT1 for unfair dismissal and racial discrimination against the Housing Association.

[3]On 15, 16 and 17 February 2000 there was a hearing at which Mr Rahman appeared in person. It came on before the London (North) Tribunal under the chairmanship of Mr M.S. Rabin sitting with two other members.

[4]On 6 March 2000 the Decision was sent to the parties. It is a substantial Decision, some 13 pages of close typing, and the unanimous decision of the Tribunal was that the Applicant, Mr Rahman, was not the victim of race discrimination in respect of his employment by the Housing Association or in respect of the termination of that employment and that, with regard to his claim for unfair dismissal, the Tribunal found that the dismissal was fair and that if the Tribunal did have jurisdiction his claim for unfair dismissal would not succeed. It was sent to the parties, as I say, on 6 March 2000. In the meantime, from 4 March to 24 March, Mr Rahman had been away. He tells me today that he had been in Bangladesh.

[5]On 7 April, according to a fax which was handed in today and not seen, I think, by Mr Pullen until today, Mr Rahman wrote to the Employment Tribunal by way of fax and a fax transmission sheet suggesting that there was something sent on 7 April is annexed to the letter which Mr Rahman produces today. One might wonder why he was sending papers and communicating with the Employment Tribunal when, of course, the appeal needed to be directed to the Employment Appeal Tribunal.

[6]There is some conflict between the various communications that Mr Rahman produces because the fax that he produces today suggests that he received appeal forms, to be completed for lodging at the EAT indicating the nature of his appeal, on 6 April, whereas a letter to which I shall later refer indicates that he received the appeal forms on 8 April. But, whichever version is true, there was a tolerable interval between his receipt of the appeal forms, at latest on 8 April, at the earliest on 6 April, and the expiry of the 42 days from the sending out of the Decision of the Employment Tribunal, which 42 days did not expire until 17 April. In that gap he seems to have written further, it is said, to the Employment Tribunal and also to have communicated orally with persons at the Employment Tribunal and he suggests that bad advice was, in effect, given to him, in the sense that he was told to await the return from holiday of an individual at the Employment Tribunal and that the matter would be, in effect, in abeyance until that return.

[7]Mr Pullen, not unnaturally, having seen no evidence of such communication (there is, in fact, strictly speaking, no evidence at all on Mr Rahman's part but merely letters and notes) adopts a quizzical attitude towards that communication with the Employment Tribunal. But, in any case, the notes which habitually are attached to Employment Tribunal Decisions and the nature of the form which Mr Rahman received either on 6 April or 8 April, make it quite plain that an appeal needs to be lodged with the Employment Appeal Tribunal and to that extent further communication with the Employment Tribunal was redundant. At all events the 42 days expired on 17 April. On 24 April Mr Rahman dated a letter and a Notice of Appeal which was received on 26 April by the Employment Appeal Tribunal. It is completed in handwriting. It would not appear to be the creature of legal advice. The grounds of appeal are as follows:

"Complex case of race discrimination unfair verdict reached by a tribunal having known that there was no legal representative. The Chairman approved the Applicant's request for an adjournment, but overturned decision on defence lawyer's claim that the prime witness is leaving the Company and country on 30/3/00. This witness has not left the Company or country now. Also case of sex discrimination has not been taken into account."

The original IT1 did not mention a claim for sex discrimination but only, as I mentioned, unfair dismissal and race discrimination.

[8]As is the common practice of the Employment Appeal Tribunal, on receiving that Notice of Appeal nine days out of time, it took it that there was to be an application for it to be registered out of time and on 3 May the EAT asked the Respondents for their attitude to the matter and this we received on 3 May. The Respondents opposed any extension. On 16 May there were further submissions from Mr Rahman. On 19 May the Registrar refused an extension. The Order of that day, 19 May says:

"AND UPON consideration of the aforesaid letter and a letter from the Respondent dated the 3 rd day of May 2000 and a further letter from the Appellant dated the 16 th day of May 2000 AND UPON due consideration of paragraph 3(1) 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 FURTHER CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS with special attention paid to 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 shown no exceptional reason why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993 IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused."

[9]That was 19 May and on 25 May Mr Rahman appealed against the Registrar's Order. What then to do? Well decisions, as I have mentioned, were sent out with details as to how to appeal. Mr Pullen has in fact quoted part of them this morning. It is quite plain and in heavy type that the appeal has to be lodged with the Employment Appeal Tribunal within 42 days of the sending out of the Decision by the Employment Tribunal.

[10]Assuming Mr Rahman was away from 4 March until 24 March 2000, well, even so, on his return he still had some three weeks in which to lodge a Notice of Appeal. Moreover, it behoves a party who is likely to be away, to make arrangements for his mail of a business nature or of a nature as to which time limits are imposed whilst he is absent. As to the merits of the appeal, they pay little part in the decision as to extension or not, as described in the Abdelghafar case, but here, although one can only at this stage take a tentative and provisional view, one certainly is not left with the impression that not to allow Mr Rahman to appeal would be to deny him an appeal with any real prospect of success.

[11]Mr Rahman this morning claims that he was given wrong advice from the Employment Tribunal or at any rate that delay on his part, whilst not encouraged by the Employment Tribunal, was a necessary incident of his communications with the Employment Tribunal. But again, the guidance notes make it quite plain that the time limit is 42 days from the sending out of the Decision and that the appeal is to be directed to the Employment Appeal Tribunal and the forms which he received either on 6 April or the 8 th again show that it is to the Employment Appeal Tribunal that the appeal needs to be lodged. In that circumstance it is hard to attach weight to his complaint that he was awaiting news from the Employment Tribunal. Mr Rahman says that he had an operation but that, as it seems, was in May and, of course, by then the 42 days had in any event expired. It is hard to see how his health affects the issue and certainly there is no evidence properly-so-called on that subject.

[12]To some extent Mr Rahman asserts that there was difficulty in obtaining legal advice. In fact, again, there is no evidence on the subject and the Notice of Appeal that eventually emerged was manifestly not the subject of professional legal advice.

[13]All in all, I find it impossible to depart from the view taken by the learned Registrar in her Order of 19 May that a case within the Abdelghafar guidelines has not here been made out and accordingly, I am unable to allow the appeal but rather must dismiss it.