MR A M MUYINDA v CROYDON DOCTORS ON CALL LTD [2000] UKEAT 698_00_0310

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 698_00_0310

Case No Appeal No. EAT/698/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A M MUYINDAAPPELLANT

CROYDON DOCTORS ON CALL LTDRESPONDENT

Before

Mr Justice Lindsay

Date 3 October 2000

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MR N BOOTH (of Counsel) Instructed by Messrs Brooke North Solicitors Crown House Great George Street Leeds LS1 3BR MR JUSTICE LINDSAY (PRESIDENT) I have before me an appeal by Mr A M Muyinda against the Registrar's decision not to extend time for lodging a Notice of Appeal. The Respondents, Croydon Doctors on Call Ltd, appear today by Mr Booth. It is now a quarter to eleven; no one attends on behalf of the Appellant. Indeed, Mr Booth tells me that his solicitors received a letter from the firm acting as Mr Muyinda's solicitors indicating that there would be no representation on the Appellant's behalf today. As Mr Booth points out, the very fact that no one is yet here at quarter to eleven rather indicates that that is, indeed, intended to be the case, although the Employment Appeal Tribunal itself had not heard anything to that or any other recent effect from Mr Muyinda's solicitors.

[2]Mr Muyinda lodged an IT1 on 19 August 1999 claiming racial discrimination. On 13 September of that year, the Respondents put in an IT3 contesting the matter. On 25 February there was a hearing at the Employment Tribunal at London South and the decision was, on the face of things, sent to the parties on the 21 March of this year. Page 21 of the present bundle includes, of course, a copy of the extended reasons, and on the last page, page 21, it says "Decision entered in Register and copies sent to parties on 21 March 2000" and it is signed on behalf of the Secretary of the Tribunal.

[3]On 14 April, it seems, Mr Muyinda personally collected a copy of the Decision from the Tribunal. He wrote a note, dated 14 April, that says as follows:

"I am writing to confirm that I have collected the Decision of the Employment Tribunal from the reception today at two twenty five in the afternoon. I shall be grateful if you would give me the reasons as to why no copies were sent to me on 21 March 2000. The period of 42 days in which to I can appeal against the Decision of the Tribunal therefore starts on Monday 17 April 2000."

[4]The assertion, as it would seem to be, that no copies were sent on 21 March has no further substantiation than Mr Muyinda's own assertion of it. Nor is there any explanation of why, if the copies were received on 14 April, time should not run until 17 April. However, the position was that nothing further was heard by the Employment Appeal Tribunal in terms of receipt of a Notice of Appeal, and on 2 May, the 42 day period from 21 March expired.

[5]On 26 May the 42 days from the 14 April (were that to be relevant) expired, but, on that very day, Mr Muyinda's solicitors sent in a Notice of Appeal and a letter saying that Mr Muyinda did not receive the Notice of Appeal until 14 April. However the rule, of course, does not provide that time should start running when a party receives a document but rather that time starts when the decision is sent. An assertion that he had not received the document until 14 April does not in any way of itself suggest that it had not been sent on 21 March.

[6]The matter was taken up with the Respondent's solicitors, as is the Employment Appeal Tribunal's practice, and they opposed any extension of time. On 16 August, the Registrar refused an extension of time. On 18 August, Mr Muyinda indicated he wished to appeal against the decision of the Registrar.

[7]If the endorsement of the 21 March were to be correct, then the decision then being sent out on that day would have had the consequence that Mr Muyinda's Notice of Appeal of 26 May was substantially out of time, and without any explanation of the lapse of time.

[8]If it was not sent out on 21 March, nothwithstanding that endorsement, but not in fact sent out until collected by Mr Muyinda on 14 April, then time would not have expired before or on 26 May and the Notice of Appeal would have been in time.

[9]So all, in a sense, could be said to depend on whether it had, indeed, been sent out on 21 March. If Mr Muyinda or his solicitors had attended today to make a case that it had not been sent on 21 March and had not been sent in any material sense until 14 April, one might have had to restore the matter to the Employment Tribunal for enquiries as to whether the endorsement was correct or at any rate as to whether there was any reason to believe that it was incorrect. In the ordinary way, time after time, the Employment Appeal Tribunal has to act on the form of endorsement on the decision as promulgated and certainly it cannot be right to accept without question and without formal evidence a mere assertion by an Appellant that he did not receive a document or that it had not been sent as it purported to have been sent.

[10]In the circumstances, neither Mr Muyinda nor his solicitors having appeared today to make a case and in the further circumstance that no formal evidence as to the sending out or receipt of the extended reasons is before me, I see no reason not to take the same view as the Registrar took, when, on 16 August, she refused an extension. I have not needed to call upon Mr Booth further than briefly. I have received written submissions on his behalf and, as I have indicated earlier, he also has indicated to me the content of the letter that had been received by his solicitors in relation to the non-attendance of Mr Muyinda or his solicitors. In the circumstances that I have mentioned, I must, as it seems to me, dismiss the appeal.