MR R POWER v (1) MS B MATTHEWS (2) BIRMINGHAM CITY COUNCIL (3) OPTIMA COMMUNITY ASSOCIATION [2000] UKEAT 654_00_0711

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 654_00_0711

Case No Appeal No. PA/654/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR R POWERAPPELLANT

(1) MS B MATTHEWS (2) BIRMINGHAM CITY COUNCIL (3) OPTIMA COMMUNITY ASSOCIATIONRESPONDENT

Before

Mr Justice Lindsay

Date 7 November 2000

[1]APPEARANCES For the Appellant MR R POWER (In person) For the first Respondent For the second Respondent For the third Respondent NEITHER PRESENT NOR REPRESENTED MR E PEPPERALL (of Counsel) Instructed by Birmingham City Council Mr Stewart Dobson Solicitor to the Counsel Ingleby House 11-14 Cannon Street Birmingham B2 5EN NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) I have before me the Appeal of Mr Power in the matter Power against 3 separate respondents, first Ms B Matthew (Barbara Matthew), secondly Birmingham City Council and third Optima Community Association. Mr Power appeals against the Registrar's refusal to extend time for lodging a Notice of Appeal.

[2]Before me today Mr Power has appeared in person, and only the second respondent has been represented or appears before me, Birmingham City Council appearing by Mr Peperall. On a date that I cannot read on my copy, Mr Power lodged an IT1 with the Employment Tribunal. His own signature is on the papers and that is dated 4 October 1999. So, presumably, it was very shortly after that day or indeed, on that day that the IT1 was lodged. It claimed unlawful deductions in pay, unpaid holiday pay, unfair dismissal constructive dismissal. That was opposed by an IT3 and that led to a hearing at the Employment Tribunal on 1 March 2000.

[3]On 20 March the decision was sent to the parties. It was the decision of the Employment Tribunal at Birmingham under the chairmanship of Mr J A Threlfell and the decision read as follows: "The unanimous decision of the Tribunal is that the applicant's claims against the second and third respondent are dismissed because neither respondent employed the applicant. The applicant's claims against the first respondent alleging: a) unfair constructive dismissal fails and is dismissed because the applicant was not dismissed by the first respondent; b) the applicant has failed to satisfy us of his claim for unpaid wages and unpaid holiday pay and those claims are dismissed. And there were, of course, extended reasons attached to that decision which, as I say, was sent to the parties on 20 March.

[4]On 28 April Mr Power gave a Notice of Appeal to the Birmingham Employment Tribunal. On 1 May the 42 days during which an Appeal might duly be lodged against the decision of 20 March expired. On 17 May, that is to say 16 days late, the Notice of Appeal was received at the Employment Appeal Tribunal. It bears a stamp that indicates that it had previously been received by the Birmingham Employment Tribunal on 28 April. No covering letter seems to have come with the Notice of Appeal from the Employment Tribunal in Birmingham to the Employment Appeal Tribunal. So the matter was unexplained at the time.

[5]On 1 June the Employment Appeal Tribunal asked Mr Power whether he wished to apply in order that time to lodge his Appeal might be extended. On 8 June the Employment Appeal Tribunal received Mr Power's letter of 5 June indicating that he did so wish to apply and did thereupon so apply. As is the usual custom, the Employment Appeal Tribunal then, on 21 June, asked the Respondent for their observations. On 4 July Birmingham City Council opposed any extension of time and on 24 July Barbara Matthew opposed any extension of time.

[6]On 17 August Mr Power put in his final written submission. On 21 August The Registrar made her Order which reads as follows:

"UPON THE application of the Appellant by letter dated the 5 th day of June 2000 for an extension of time in which to enter a Notice of Appeal AND UPON consideration of the aforesaid letter and a letter from the first Respondents dated the 24 th day of July 2000 and a letter from the second Respondents dated the 4 th day of July 2000 and a further letter from the Appellant dated the 17 th day of August 2000. AND UPON DUE CONSIDERATION of Rule 3(2) where it is clearly stated that " the period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision or order of the employment tribunal were sent to the appellant"

AND UPON CONSIDERATION of the fact that because the Employment Appeal Tribunal is not part of the Employment Tribunals information is provided with the Employment Tribunal Decision giving parties the address to which appeals should be sent AND UPON 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 CONSIDERATION of the judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS IT IS CONSIDERED that there has been shown no exceptional or acceptable reason why the notice of appeal could not have been presented within the time limit laid down AND IT IS ORDERED that the application for an extension of time in which to present the notice of appeal is refused. And that, as I say, is 21 August.

[7]On 31 August, Mr Power was sent a sealed copy of the Order and on 2 September he appealed against the Registrar's Order. The only explanation for the delay (which is asserted rather than put in evidence, in any event) and the only circumstance relied upon as being exceptional and as justifying an extension of time is the fact, as I recited, that Mr Power had lodged a Notice of Appeal within time with the Employment Tribunal who, he says, accepted it. He goes on to say nonetheless the Tribunal did not tell him that it should not have been lodged with them but rather should have been lodged with the Employment Appeal Tribunal.

[8]The Employment Tribunal, he says, took upon itself the task of forwarding the matter to the Employment Appeal Tribunal, which they did late, and, he adds, if only they had told him in time that it was not proper to lodge the papers with them he would have done something about it in time. But they failed to do so and accordingly, ultimately, the Notice of Appeal was received by the Employment Appeal Tribunal out of time.

[9]However, against that, the form sent out with decisions of the Employment Tribunal make it abundantly clear that Appeals are to go to the Employment Appeal Tribunal, the address of which is specifically given in the forms that are sent out. Mr Power's only explanation for not noticing that and acting on it is that he had mislaid the papers.

[10]It is wrong, as it seems to me to expect Employment Tribunals, which have quite sufficient to do to process in good time the papers that are appropriate for them to process, to deal in equal good time with papers, such as appeals to the Employment Appeal Tribunal, which truly are no concern of theirs at all. They are, in my view, under no duty to pass on such papers to the Employment Appeal Tribunal, nor to do so as a matter or urgency, nor to warn that they will not do so or may not do so.

[11]It is difficult to see how lodging the papers in time with the wrong person can be thought to justify a failure punctually to lodge with the right person. In the paper argument, on behalf of Mr Peperall, there is reference to United Arab Emirates v Abdalghafar, the leading case in this area and to Aziz v Bethnal Green and also, in the argument, Mr Power makes reference to the earlier case Duke v Prospect Training Services Limited

[1988] ICR 521

. The Duke case is a case where the prospective Appellant had written within the 42 days to a number of parties or interested persons and had sent a letter which, inter alia, warned of his intention to appeal. But he sent that particular letter to the Employment Tribunal. When, in order to seek an extension of time, that Appellant sought to rely upon that warning having been given to the Employment Tribunal within time, Popplewell J, in giving the judgment of the Employment Appeal Tribunal said, at page 525, as follows:

"The [Employment Tribunal] is totally uninterested in whether there is to be an Appeal; they no longer have jurisdiction in the matter. This Appeal Tribunal in the form of the office is equally uninterested in whether somebody is appealing or not until a Notice of Appeal comes in."

With respect, that seems to me plainly correct. No extension was granted in the Duke case. See also Martin v British Railways Board

[1989] ICR 24

[12]Mr Power fails to give an adequate explanation of how he came not to act upon the clear directions given in the papers which accompanied the Employment Tribunal's decision. The Employment Appeal Tribunal did not receive his Notice of Appeal within the time prescribed. The fact that it was handed to the Employment Tribunal furnishes no good explanation. So far as concerns the merits of the Appeal, he had handed in a letter of resignation. That can, of course, be a dangerous course for an employee because an Employment Tribunal may hold that the circumstances that surrounded the handing in of the letter did not represent those of a constructive dismissal.

[13]What the Tribunal said on that subject was this:

"The Committee said that they wanted to address the substantive issues and that at that stage the applicant handed in a letter of resignation which had been prepared before the hearing. The applicant told us that he felt he had no option but to resign. He considered that the action against him was orchestrated by the officers of the second respondent, who had opposed his original appointment and were forcing the committee to act against him under the threat of the removal of the funding. He particularly challenged the make-up of the disciplinary committee, and said that the audit report was so riddled with flaws that it would have been unrealistic to expect him to deal with it in the absence of the author of the report, that there was a failure to follow the disciplinary procedures and that there had been serious allegations against him by various people including ones that arose from the initial suspension. He felt that his credibility had been destroyed by the allegations in the report and his suspension. We have to determine whether there was a breach of the applicant's contract of employment, which amounted to a fundamental breach going to the root of the contract and entitling him to resign in consequence."

[14]So they thoroughly understood the case as it was being put. In their paragraph 20 a little later they said:

"The only reasonable conclusion to be drawn is that the reason for the applicant's resignation was that he was not prepared to face the issues raised in the audit report and, when he was unable to avoid them by procedural means, he was left with no option but to resign. We do not accept that at that point he was justified in considering that there had been a breach of the duty of mutual trust and confidence and we are satisfied that in any event the reason for the applicant's resignation was to avoid answering the enquiry rather than any other issue. It follows, therefore, that we do not consider the applicant was constructively dismissed. As he was not dismissed his claim for unfair dismissal must fail."

[15]It is not possible or necessary fully to assess the merits of the Appeal at this stage. Otherwise one would get into the situation in which one had to hear the Appeal in order to determine whether the Appeal should be heard. But the decision of the Employment Tribunal is very largely one of fact which, of course, makes an Appeal very difficult for an Appellant because the Employment Appeal Tribunal hears matter only of law. There are further difficulties in the Appeal as against the second and third respondent because, as Mr Peperall points out, the holding was that Mr Power had not at any material time being employed by either the second or third respondent and there does not appear to be any effective Appeal as against those findings. That would have the consequence that, whatever the strength of the case against the first respondent, it would fail against the second and third.

[16]The merits, as I say, of the prospective appeal play only a relatively small part of the overall assessment in cases such as the one before me but I can say that here they do not appear to strengthen Mr Power's position. I have in mind the AbdelGhafar case mentioned in the Registrar's Order and also the later case of Aziz v Bethnal Green in the Court of Appeal to which Mr Peperall has drawn to my attention.

[17]In that case the Court of Appeal heard a challenge on these lines: that the Employment Appeal Tribunal was stricter with its own appeals than the Court of Appeal was in respect to appeals to the Court of Appeal and that it was wrong to take such a strict line. However, the Court of Appeal upheld the guidelines that Mr Justice Mummery had given in Abdelghafar and which have been acted upon very frequently ever since.

[18]It is also worth noting what Sir Christopher Staughton said in paragraph 20 of Aziz at 2000 ILR 113 where he said: "I would agree with what Mummery J said in the United Arab Emirates case at 246 that the time limit would only be relaxed in rare and exceptional cases where the Appeal Tribunal is satisfied that there is a reason which justifies departure from the time limit laid down in the rules. That seems to me a very proper rule for the Employment Appeal Tribunal to adopt".

[19]So the stricter the line habitually taken by the Employment Appeal Tribunal survived that attack upon it in Aziz and there are very many cases where extensions have been refused when the delays have been far less than the 16 days apparent in this case. I go back to the only reason advanced for the delay here namely the lodging of the papers at the Employment Tribunal and Employment Tribunal's failure to advise Mr Power that they were not the proper recipients. That, as it seems to me, especially given the very clear notices that accompany Employment Tribunal's decisions and which give the name and address to which appeal should be lodged, is an inadequate reason. It furnishes no good explanation and, in my view, therefore the Registrar did not err when her Order was made. I do not extend time and I dismiss the Appeal.