MS S A MAIDMENT v ST EDMUNDSBURY BOROUGH COUNCIL [2000] UKEAT 93_00_2711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 93_00_2711Case No Appeal No. PA/93/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS S A MAIDMENTAPPELLANTST EDMUNDSBURY BOROUGH COUNCILRESPONDENT
Before
Mr Justice LindsayDate 27 November 2000
[1]APPEARANCES For the Appellant The Appellant in person For the Respondent MR PETER WALLINGTON (of Counsel) Instructed by: Mr Richard Hemmings Solicitor Sandy Lane Barham Ipswitch Suffolk IP6 OPB MR JUSTICE LINDSAY (PRESIDENT) I have here before me the appeal of Sally-Anne Maidment in the matter Maidment -v St Edmundsbury Borough Council . Ms Maidment appeals against the Registrar's refusal to extend time for her Notice of Appeal, which was delivered 10 days late.[2]Before me today Ms Maidment has appeared in person and the Borough Council by Mr Wallington On 7 April 1998, or thereabouts, Ms Maidment began employment with St Edmundsbury. On 2 June 1999 two IT1s were presented by her, one for breach of contract, unfair dismissal and unauthorised deductions from salary, and another for sex discrimination.[3]On 26 June 1999, St Edmundsbury lodged an IT3 alleging that that was not the position, but that Ms Maidment had been dismissed for gross misconduct. The nature of the misconduct, as it was alleged, included submission of false relocation, travelling and subsistence claims, and standing as an election candidate in her local Council - Brentwood Borough Council - in breach of her terms of employment. The Borough Council denied breach of contract and denied also sex discrimination and lodged a counter-claim So there was obviously going to be quite a contest, and, indeed, there was. There was a six days' hearing at Bury St Edmunds, in October 1999, before the Employment Tribunal under the Chairmanship of Mr B Mitchell.[4]On 26 November 1999, the decision of the Tribunal was sent to the parties. It was a unanimous decision, and it was as follows:
"The unanimous decision of the Tribunal is that the applicant's complaint of victimisation on grounds of sex fails and is dismissed. The complaint of wrongful dismissal fails and is dismissed. The complaint of breaches of contract fails also. The complaint of unfair dismissal is stayed. The respondent's counter-claim is dismissed and there is no order for costs."
In the course of that decision, the Tribunal said, after setting out some findings of fact: "22 Those findings, in our judgment, represent a gross breach by the applicant of the implied term that there should be nothing by either party calculated or likely to destroy trust and confidence between employer and employee. The applicant's knowingly submitting false claims struck at the root of the contract of employment".[5]Ms Maidment was unhappy at the decision and on 30 November, she lodged a very long application to the Employment Tribunal asking for the decision to be reviewed. In my particular bundle of documents, the application runs from page 56 to page 80; a long and detailed application to the Chairman, Mr Mitchell and to the two lay members who had sat with him.[6]On 7 January 2000, the 42 day period from the sending out of the decision to the parties on 26 November 1999 expired. When a decision is sent out by an Employment Tribunal, it is accompanied by a conventional sheet of explanation which makes it plain that if a party wishes to have the decision reviewed, they can do so in such and such a way, and also that if an appeal is sought to be lodged, that too is explained: it is explained that the 42 day period runs from the sending out to the parties of the decision, and the address is given of the Employment Appeal Tribunal to whom it says any appeal is to be directed.[7]On 12 January, the application for a review was turned down by the Chairman alone on the ground that it had no reasonable prospect of success. On 17 January, the Notice of Appeal was received by the Employment Appeal Tribunal, accordingly 10 days late. On 14 February, the Employment Appeal Tribunal advised Ms Maidment that her Notice of Appeal was 10 days out of time and asked whether she wished to apply to have time extended, and on 21 February, she indicated that she did, indeed, wish to have time extended. Then as the Employment Appeal Tribunal conventionally does, it sought the views of the other side, (in this case, St Edmundsbury Borough Council) and on 15 March St Edmundsbury indicated that they would oppose any extension of time and gave reasons for that opposition.[8]On 31 March, Ms Maidment added further submissions, and then on 9 May, the Registrar made her Order. It included this:
"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 a properly constituted notice of appeal is submitted to the Employment Appeal Tribunal within 42 days even though an application had been made to the Employment Tribunal for review. AND UPON FURTHER CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS it is deemed 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]On 13 May Ms Maidment indicated that she wished to appeal against the Registrar's Order, and on 15 November, which is not very long ago, Ms Maidment added some final submissions or points to be made in relation to this hearing.[10]Ms Maidment's arguments on paper, although not quite so much this morning, revert time after time to the merits of the case; even this morning she has reiterated that as a matter of public policy her case is proper to go forward and improper to be stopped. But where the question is whether time should be extended, where there has already been one hearing, the merits, unless fairly obviously good or bad, play a relatively small part in the deliberations in relation to an extension of time. Otherwise one would have to be able to take a fully informed view as to the merits of the appeal in order to work out whether the appeal should be allowed to go forward, which would be not only time consuming but illogical.[11]What the Employment Appeal Tribunal chiefly looks for is an honest and detailed explanation of the reason for the failure to lodge the appeal in time, and, when that is shown, one then seeks to see whether that reason affords good ground for what is an exceptional and indulgent course, that of extending time for the Notice of Appeal. But in the papers here, no reason at all appears, except possibly a misunderstanding of the time afforded for appeals Ms Maidment says that she thought that the 42 days meant 42 working days and not 42 absolute days, but, if she had read the notices that go out with the decision, she really could not have come to that view and in any case the construction of the rule is quite clear.[12]This morning she has said that during the relevant period, she was ill and seriously ill, for a length of time. But no medical evidence, not even a certificate, has been put in front of me, and, if medical reasons are to be relied upon, especially when so much time has been afforded to Ms Maidment in order to get her case in proper shape, one really can reasonably expect at least a medical certificate, and failing that or in addition to that, medical evidence if medical grounds are to be accorded any weight at all. But nothing of that nature has appeared, and, indeed, the mention of medical evidence or of medical conditions as a reason for delay, is, as it seems to me, a very recent appearance.[13]I have been unable to see from the papers that Ms Maidment puts in front of me, or indeed from her oral address today, that this is a case where any good ground for an extension of time is made out. I am not listening to an appeal from some rustic or illiterate but from an intelligent and educated person, and that makes it particularly difficult to accord any weight to the mistaken view that "days" meant "working days".[14]I have already, this morning, in another case, referred to the Court of Appeal decision in Aziz -v- Bethnal Green . In that case, there was argument that the Employment Appeal Tribunal was more strict in its time requirements than the Court of Appeal was in relation to appeals to the Court of Appeal and there was an attempt to criticise the Employment Appeal Tribunal on that ground. But, far from disapproving a relatively strict approach on time limits, the Court of Appeal did nothing to discourage the Employment Appeal Tribunal from continuing its current practice of taking a relatively strict line. Here, there was a delay of, 10 days: it has not been adequately explained; there is, as it seems to me, no good ground for an extension of time, so I must dismiss the appeal. I now have in front of me in the Maidment matter concerning St Edmundsbury Borough Council v Sally-Anne Maidment an application by the Borough Council for costs. The application is made under Rule 34 of the Employment Appeal Tribunal Rules 1993 which says this, where it appears to the Appeal Tribunal:
"(a) the proceedings were unnecessary, improper or vexatious, or (b) there has been considerable delay or other unreasonable conduct in bringing or conducting the proceedings"
The Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings. Mr Wallington on behalf of St Edmundsbury says that the proceedings were unnecessary and unreasonable. As for them being unnecessary, that is not the case: they were necessary in the sense that if Ms Maidment wished to lodge her Notice of Appeal and have it accepted, she had to apply for an extension of time. The only way she could get the Notice of Appeal accepted was by doing so, so to that extent I do not agree that the proceedings were unnecessary. It is not said that they were improper or vexatious, and even if it had been, I would not have characterised them in either such way. There has been no unreasonable delay in raising this appeal, and so that is irrelevant. Has there been unreasonable conduct in bringing or conducting the proceedings? Well, it is true that Ms Maidment misunderstood the time limit: she claims that she had in mind 42 working days, rather than 42 what I called "absolute days", but I do not see that that amounts to unreasonable conduct, it was a mistake, certainly of interpretation of language, but one cannot, in my view, describe it as being "unreasonable conduct". Accordingly, I do not find any case under Rule 34 and make no Order as to costs.