DANCIBAR v MISS N GALLAGHER [2000] UKEAT 784_00_1010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 784_00_1010Case No Appeal No. PA/784/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DANCIBARAPPELLANTMISS N GALLAGHERRESPONDENT
Before
Mr Justice LindsayDate 10 October 2000
[1]APPEARANCES For the Appellant NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT For the Respondent NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) I have before me the Appeal of Dancibar Ltd in the matter Miss N Gallagher against firstly, Planet Telecom Ltd and, secondly, Dancibar Ltd. Dancibar appeals against the Registrar's refusal to extend time for its Notice of Appeal. The time is now 2.25 in the afternoon. The matter was listed to come on at 10.30. At around about 11.30, no-one having attended on Dancibar's part and no communication having been received, the EAT sought to make contact. It was established what the contact telephone number was of Dancibar Ltd and the number was telephoned to find out what the position was.[2]I am told that the reaction on the part of the persons spoken to on behalf of Dancibar was that they had got the date of the hearing wrong. They had thought it was tomorrow whereas the 10 October is today. That was reported back to the Associate, who indicated that fresh contact should be made with Dancibar Ltd, in order to have something put into writing on their behalf so that precisely what their case was or position was could be ascertained. Thus a second telephone call was made to Dancibar and they were told that they would need to fax quite what their position was on the Notice of hearing they had received and what was their understanding of it, or misunderstanding, and so on.[3]It is now 2.25 (as I have said) and nothing has been received whatsoever on Dancibar's part and accordingly I shall need to go ahead without hearing further from them.[4]On the other side, the Respondent to the Appeal, Miss Gallagher, by her solicitors has written to say (and had written some time ago to say) that she would not be appearing for resource reasons but they put in a Skeleton Argument on her behalf. So much for the immediate procedural position. The chronology is as follows. There was a four day hearing at the Employment Tribunal between 8 February and 13 April 2000 (on various dates during that period) and on 2 May a decision was sent to the parties.[5]The unanimous decision at the Tribunal, which was the Employment Tribunal at Manchester under the chairmanship Mr C J Chapman, was that the second Respondents, Dancibar, had made an unlawful deduction from the earnings of Miss Gallagher and were ordered to pay her £135. The statutory requirements were then cited. The second Respondent, Dancibar, was held to have discriminated against Miss Gallagher, contrary to Section 1(1)a and Section 6 (2)b of the Sex Discrimination Act 1975 . The hearing was adjourned to determine remedy and the first Respondent Planet Telecom Plc was dismissed from the proceedings.[6]The matters took a decidedly unusual course because, that decision having been sent to the parties on 2 May, and time therefore having started to run in which a Notice of Appeal might be lodged with the Employment Appeal Tribunal, Planet, although no doubt acting on Dancibar's part told the Employment Tribunal that it wished to lodge an Appeal.[7]On 2 June Dancibar sought a review of the decision of 2 May. On 5 June the review was refused and the letter of the Employment Tribunal indicating that the review had been declined went on to deal with a possible Appeal. It said this:
"The Tribunal is unable to treat the letter (that was the letter requesting a Review) as an appeal to the Employment Tribunal as appeals against Tribunal decisions must be made directly to the EAT and not to the Tribunal as was made clear to both the respondents and the applicant in the notes that accompanied the Tribunal's decision, sent to both respondents on 2 May 2000."
That is a reference to the printed forms conventionally sent out with Employment Tribunals' decisions to make it quite plain that if an Employment Tribunal is to be appealed, the Appeal is to go to the Employment Appeal Tribunal and it even gives the address for the Employment Appeal Tribunal and it tells the reader of the 42 day period.[8]On 6 June (but I think it was received by the Employment Tribunal perhaps on 8 June) Planet, on Dancibar's part, asked the Employment Appeal Tribunal to pass their previous letter, as it had been sent to the Employment Tribunal, on to the Employment Appeal Tribunal that was on the 6 th and on the very same day the Employment Tribunal told Dancibar that an Appeal had to go direct to the Employment Appeal Tribunal. There is, amongst my papers, an Attendance Note of 6 June of a communication as between Mr Hutcheon of Dancibar or Planet or both, and the Employment Tribunal and it says this:
"I rang Mr Hutcheon to explain that he had to contact EAT direct in order to apply for an Appeal to them. I confirmed that the Decision on the Application for a Review would be in today's post along with another copy of the Notes on Decisions, which contained EAT's address. He thanked me for explaining the procedure."
[9]On 13 June the 42 day period from 2 May expired and then on 15 June Dancibar sent its letters, which had previously been addressed to the Employment Tribunal, to the Employment Appeal Tribunal and they said this:
"PLEASE TREAT THESE LETTERS AS AN APPEAL TO YOU, THE EAT."
That communication is stamped as having been received at the Employment Appeal Tribunal on 15 June.[10]On 4 July the Employment Appeal Tribunal told Dancibar that its Notice of Appeal was 2 days late and asked whether it sought an extension of time. On 6 July Dancibar sent a response which has been treated as a request for an extension of time. It actually read: "WHAT? IT WAS LATE BECAUSE THE LOCAL CENTRE SENT IT BACK TO US INSTEAD OF USING A BIT OF SENSE IN SENDING IT DIRECT TO YOURSELVES.".[11]On 29 July Miss Gallagher's solicitors lodged a full reasoned opposition to any extension of time and on 3 August Planet, still presumably acting for Dancibar, by letter alleged that its Notice of Appeal had been in time. They said:
"As far as we are concerned, our appeal was registered in time. The fact that it was sent to the wrong office was an oversight. As previously stated, if the Manchester office had of sent it direct to you then it would have been received by you in time. Our position therefore remains that we did lodge the appeal in time."
[12]On 4 August the Registrar made an Order part of which reads as follows:
"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 the 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 due 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 IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused."
[13]On 16 August Planet's letter of 3 August was faxed afresh to the Employment Appeal Tribunal by way of a repeat.[14]On 2 October Planet wrote a letter to the Employment Appeal Tribunal concerned chiefly or solely with the merits of the Appeal which in any event, as described, seem to have been exclusively or almost exclusively an Appeal as to fact; certainly no manifest point of law emerges out of the grounds and advanced.[15]On 3 October Miss Gallagher's solicitors indicated that on costs grounds Miss Gallagher would not be appearing today but they submitted, as I mentioned, a Skeleton Argument. That is the chronological background. Employment Tribunal's decisions are sent out with explanatory notes that make it abundantly plain that any Appeal, if there is to be one, has to go to the Employment Appeal Tribunal, the address of which is clearly stated, as is the time of 42 days, as is also the point that time starts running when the Employment Tribunal sends the decision to the party that seeks to appeal.[16]Even leaving aside that Dancibar was thus remarkably obtuse in sending its informal Notice of Appeal to the Employment Tribunal, it was told clearly again by the Employment Tribunal directly in the telephone call of 6 June in the Attendance Note which I read earlier that any Appeal had to go to the Employment Appeal Tribunal. However, even so, the Employment Appeal Tribunal received nothing until 15 June.[17]No explanation is given, firstly, of why Dancibar did not do anything, as far as one can tell, from 4 May (which would be the date on which the Decision sent to the parties might be expected to have been received at the latest) and 31 May, when Planet, acting for Dancibar, first indicated that it wished to lodge an Appeal, albeit that it gave the indication to the Employment Tribunal rather than to the Employment Appeal Tribunal.[18]There is no explanation of what, if anything, was done by Dancibar in that period. There is no explanation of how the clear written instructions accompanying the Employment Tribunal's decision, namely that an Appeal had to be lodged with the Employment Appeal Tribunal at the given address, came to be ignored or overlooked. There is no explanation, either, for the delay of Dancibar in acting promptly after being told on 6 June by the Employment Tribunal that it had to contact the Employment Appeal Tribunal direct.[19]Moreover, the merits of the Appeal do not suggest an Appeal with any manifest prospect of success. Thus, whilst it is not possible in an Application such as this to make a fully informed assessment of the merits of the Appeal – (that sort of assessment is not relevant in any event because otherwise one would have to hear the appeal in order to decide whether the Appeal could be heard.) - such view of the merits as one can take briefly, which is as much as would be appropriate on an Application such as this, do not militate in Dancibar's favour.[20]I shall not set about a Summary of the well-known case of AbdelGhafar which is referred to in the Registrar's Order, nor to the more recent case in the Court of Appeal Aziz v Bethnal Green. But I have both those cases in mind, including the point that in Aziz the Court of Appeal did not disapprove of the Employment Appeal Tribunal's relatively strict approach to time limits in this regard. Those familiar with this area will know that there are a number of cases where notices of appeal have been refused where only one day has been the period of lateness.[21]In the absence of any relevant explanation by Dancibar, and I repeat that no-one has appeared for them today and nothing has been heard from them other than as I have mentioned, it is quite impossible to disagree with the contention raised by Miss Gallagher's solicitors in the Skeleton Argument that they lodged.[22]In their paragraph 15 they say:
"Dancibar have shown no exceptional or acceptable reason why the Notice of Appeal could not have been presented within the time limits laid down."
That seems to me a very apt submission which I accept and in these circumstances, I must dismiss the Appeal.