MR W RICHARD-NOEL v CRANE HILL ENGINEERING [2000] UKEAT 581_99_1204

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 581_99_1204

Case No Appeal No. PA/581/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR W RICHARD-NOELAPPELLANT

CRANE HILL ENGINEERINGRESPONDENT

Before

Mr Justice Lindsay

Date 12 April 2000

[1]APPEARANCES For the Appellant APPELLANT NEITHER PRESENT NOR REPRESENTED. For the Respondent MR M CONDRON Representative Peninsula Business Services Ltd Advocacy & Litigation Dept 2nd Floor, Stamford House 361-365 Chapel Street Salford Manchester M3 5JY MR JUSTICE LINDSAY (PRESIDENT) This is the appeal of Mr Wesley Richard – Noel in the matter of Richard – Noel v Crane Hill Engineering. The matter was called on at 10.30am. It is now 10.40am, nothing has been heard from Mr. Richard – Noel either to indicate that he was not coming or that he was intending to come or that he was delayed, ill or anything of that nature and so the case proceeds in his absence. Crane Hill Engineering, the Respondent below, has appeared by its representative Mr Condron. The position is that Mr Richard – Noel had lodged an IT1 and on 24-25 February 1999 and the 19, 20 and 21 st May there was a hearing on the merits but, within those days, it is quite plain that on 19 May 1999, there was a hearing at Bedford on a procedural point. The Chairman, Mr G Plenderleath gave judgment on it orally, it seems, or, at any rate, indicated the result, namely that leave would not be given to call additional witnesses and that a postponement of the case would be refused. Before any written decision was available on the same day, 19 May, a so-called Notice of Appeal was lodged by Mr Richard – Noel in handwriting as to the decision of that day which obviously was not then in writing but had been indicated orally. At that stage it would seem that Mr Richard – Noel was still having some assistance because the so-called Notice of Appeal says:

"Any communication relating to this appeal may be sent to and then there is identified, Mr C Denamont, Locum Director of the Bedford Race and Equality Council."

[2]On 24 May the Employment Appeals Tribunal wrote to Mr Richard – Noel saying that:

"the Registrar has directed that without a written decision we have no jurisdiction to hear the appeal and therefore, no further action will be taken here."

On 27 May there was a decision in writing sent to the parties as to the procedural application which had been heard on 19 May. The decision was that the "unanimous decision of the Tribunal is that the Applicants request for leave to call additional witnesses and for a postponement of the hearing are both refused." It was the decision not only of the Chairman, Mr Plenderleath, but also of the two members, Mr Boswell and Mr Cullen. On 27 May also there was a written decision sent to the parties confirming the decision of 27 May on review, so at some stage a review had been sought by Mr Richard – Noel. The procedural decision of 27 May was, on that review, confirmed. On 3 June the merits decision, by which I mean the substantive decision on the whole hearing from 24 February 1999 – 21 May 1999, was sent to the parties and Mr Richard – Noel was unsuccessful. The unanimous decision was that the applicant's complaint of racial harassment and victimisation was not well founded and was dismissed.

[3]On 20 July another Notice of Appeal was received, a second one from Mr Richard – Noel, and it purported to be against all three decisions, that is to say, the procedural decision of 27 May, the review decision of 27 May and the substantive decision of 3 June. On 18 August the Employment Appeals Tribunal indicated to Mr Richard – Noel that, so far as concerned the decisions of 27 May, time had expired on 8 July and hence, the Notice of Appeal on the 20 th was out of time, and so far as concerned the decision of 3 June, time had expired on 15 July and so again the Notice of Appeal of the 20 th was out of time. On 1 September there was a long letter of explanation from the Appellant and on 20 October the Registrar refused an extension of time for the lodging of an Notice of Appeal. There is an appeal by Mr Richard – Noel against that refusal. Well, looking at the decisions separately, as to the substantive decision of 3 June, plainly the most important, there is no Notice of Appeal lodged in time. I have considered the long explanation sent by Mr Richard – Noel on 1 September but no good reason, in my view, emerges from that enabling me to grant an extension of time, having in mind the Abdelghafar case and the attitude or approach to extension of time which that case indicates and which has more recently been approved by the Court of Appeal in another case called Aziz, which I also have had the opportunity to read. It seems to me that there is no good case made for extension in relation to the decision of 3 June and to that extent, I dismiss the appeal.

[4]So far as concerns the decision of 27 May confirming, on review, the decision of 19 May, time had expired on 8 July; again, no good reason is shown in Mr Richard – Noel's application and again I would dismiss the appeal. But there is one remaining factor that gives rise to a little uncertainty. The decision of 27 May on the procedural issue as to leave to call additional witnesses and to postpone the hearing does present a slightly different feature, because the so-called Notice of Appeal of 19 May was received even before the written decision had been promulgated and the Employment Appeals Tribunal, as I have indicated earlier, took the technically correct line that it was premature, that without a written decision, there was no jurisdiction to hear the appeal and, therefore, that no further action would be taken. I could have foreseen an argument from Mr Richard – Noel, had he attended, that it was too technical a view to take of the matter because, after all, the letter of the Employment Appeal Tribunal had not warned him that, after a written decision had emerged, he would have afresh to relodge the Notice of Appeal that he had already lodged in relation to an oral indication of the result and while he had lodged on 19 May.

[5]One can see an argument might have been advanced of that character but Mr Richard – Noel does not bother to attend to advance such an argument and Mr Condron points out it does not seem to be right to treat to Mr Richard – Noel as a floundering litigant in person as at the 19 May, or indeed within the 42 day period after the promulgation of the written decision on 27 May because Mr Richard – Noel seems to have wished to have communications with him made to the Locum Director of the Bedford Race Equality Council. It might have been possible to extend time only in relation to the procedural decision of 19 May (orally) and 27 May (in writing) on the procedural subjects I have mentioned. It would, perhaps, have been a somewhat sterile appeal given that the merits decision could not be appealed against but there might have been room for granting an extension of time in that limited regard. But, bearing in mind Mr Condron's point that there is no good reason to treat Mr Richard – Noel as some floundering litigant in person, bearing in mind that he does not intend to argue anything and gives no reason for not attending and given also that an appeal merely against a procedural issue might, in any event, be a rather sterile appeal, it seems to me the proper course would be not to extend time in any respect here and accordingly I dismiss the appeal against the Registrar's decision. The position is left that all Mr Richard – Noel's applications to the EAT are out of time and to that extent disallowed.