MR W CUTHBERT v MR C JOPLING (AN INSPECTOR WITH THE HEALTH & SAFETY EXECUTIVE [2001] UKEAT 0250_01_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0250_01_1907Case No Appeal No. PA/0250/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR W CUTHBERTAPPELLANTMR C JOPLING (AN INSPECTOR WITH THE HEALTH & SAFETY EXECUTIVERESPONDENT
Before
Mr Justice LindsayDate 19 July 2001
[1]APPEARANCES For the Appellant THE APPELLANT (In Person) For the Respondent MR M HUGO (Representative) Health & Safety Executive 201-211 Borough High Street London SE1 1GZ MR JUSTICE LINDSAY (PRESIDENT) I have before me an Appeal of Mr William Cuthbert in the matter Cuthbert v Mr C Jopling , Mr Jopling being an Inspector with the Health & Safety Executive. This morning Mr Cuthbert has appeared in person and Mr Jopling and Mr Hugo, both Inspectors of the Health & Safety Executive have also appeared before me. No one before me aspires to or claims legal qualification and that is a point of some materiality, as I will come on to.[2]On 17 April 2000 Mr Jopling, as an Inspector of the Health and Safety Executive, served an Improvement Notice on Mr William Cuthbert of 62 Queens Circus, Queenstown Road, SW8 4NA, an address at which Mr Cuthbert was carrying on, in a relatively small way of business, trading as BCT-Shirts. Mr Jopling tells me that as a matter of conventional practice when the Improvement Notice is served it is accompanied by a form ITL 19 headed 'Appeals to Employment Tribunals concerning improvement or prohibition notices under the Health and Safety at Work etc Act 1974', an explanatory leaflet for Appellants and Respondents. I will come back to that.[3]Mr Jopling was empowered to serve the Improvement Notice under Section 21 of the Health and Safety at Work Act 1974. So far as appeals are concerned against an Improvement Notice, Section 24 of the Health and Safety at Work etc Act 1974 provides for them at subsection (2):
"A person on whom a notice is served may within such period from the date of its service as may be prescribed, appeal to an [employment tribunal]; and on such an appeal the tribunal may either cancel or affirm the notice and, it affirms it, may do so either in its original form or with such modifications as the Tribunal may in the circumstances think fit."
And there are subsections 3 and 4 which I need not go into at the moment.[4]That refers to "as may be prescribed" and the prescription of the time for bringing such appeals is in Schedule 4 to the Employment Tribunals (Constitution and Rules Procedure) Regulations 1993, see Regulation 8(4)(b). That in terms sends one to paragraph 2 of the 4 th Schedule. The 4 th Schedule is headed 'Rules of Procedure Applicable to Appeals Against Improvement and Prohibition Notices' and 2(1) says:
"Subject to paragraph 2 the Notice of Appeal shall be sent to the Secretary within 21 days from the date of the service on the Appellant of the Notice appealed against."
And sub paragraph (2):
"A Tribunal may extend the time mentioned above where it is satisfied on an application made in writing to the Secretary either before or after the expiration of that time that it is not or was not reasonably practicable for an appeal to be brought within that time."
[5]So far as concerns service under the 1974 Act, that is dealt with in Section 46 subsection (2) of the Health and Safety at Work Act 1974:
"Any such notice required or authorised to be served on or given to a person other than an inspector may be served or given by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address."
And subsection (6) of Section 46:
"Without prejudice to any other provision of this section, any such notice required or authorised to be served on or given to the owner or occupier of any premises (whether a body corporate or not) may be served or given by sending it by post to him at those premises, or by addressing it by name to the person on or to whom it is to be served or given and delivering it to some responsible person who is or appears to be resident or employed in the premises."
[6]The Employment Tribunal held that the Improvement Notice in issue here was received by Mr Cuthbert on or before Thursday, 20 April 2000. The period of 21 days for service expired therefore not later than 11 May 2000. The Employment Tribunal received nothing from Mr Cuthbert until 24 May 2000 when it received a letter from Mr Cuthbert dated 22 May 2000. In his letter Mr Cuthbert writes:
"I enclose a letter regarding an improvement notice IN/CJ120400/02. The Health and Safety Executive have failed to provide me with a reasonably competent inspector. They have also asked for the impossible, "to treat interior walls so they can be kept clean"
. This would mean stopping water penetration, impossible in a leaky Railway arch where I am not allowed to touch the bricks let alone reasonably practical. I therefore ask permission to appeal late (assuming there is a time limit), I have not been able to deal with their officer because he is incompetence, they have so far failed to supply another. I however believe that if I can talk to a competent inspector the matter can be resolved thus negating the need for your involvement."[7]Mr Cuthbert had earlier on 8 May 2000 written a long letter to Mr Jopling's colleague at the Health and Safety Executive complaining of Mr Jopling's want of competence and saying at the foot of his letter:
"I will not lodge my appeal until I receive your reply."
He also said he had been off sick. The past tense suggests that his sickness absence was already a thing of the past by the 8 May 2000.[8]Then the matter came on on 12 September 2000 in front of the Employment Tribunal. On 18 September the decision was sent to the parties. It was the decision of the Tribunal at London South sitting under the chairmanship of Mr Peters. It was unanimous and it was:
"The Notice of Appeal was not sent to the Tribunal within 21 days from the date of the service on the Appellant of the notice appealed against and the Tribunal finds it was reasonably practicable for the appeal to have been brought within that time and accordingly the appeal is out of time. As a consequence the Tribunal dismisses the appeal."
[9]The Tribunal said of the Improvement Notice:
"That letter was received by the Appellant on or before Thursday 20 April. On the reverse of the Improvement of the Improvement Notice were notes including a note concerning appeal against the notice and specifying that the Notice of Appeal should be presented within the period of 21 days. The Appellant was not at work for a period of some ten days due to influenza and on his return to work he did not immediately deal with the Improvement Notices, however on 8 May 2000 he wrote to the Health & Safety Executive concerning the Improvement Notices. On 22 May the Appellant sent to the Employment Tribunal a letter asking for permission to appeal late against one of the Improvement Notices' served on him by the Respondent. That letter was received by the Employment Tribunal on 24 May 2000. The Respondent entered a Notice of Appearance pointing out that the appeal was out of time."
[10]The Employment Tribunal was referred to Section 24 of the 1974 Act and to paragraph 2(1) of Schedule 4 and they continued:
"10. However paragraph 2(2) of the same Schedule provides that the Tribunal may extend the time where it is satisfied on an application made in writing that it was not reasonably practicable for an appeal to be brought within that time. 11. The Tribunal heard evidence from the Appellant from which the above facts have in part be found, and the Respondent called no evidence. The parties made submissions. The Appellant submitted that his illness rendered it not reasonably practicable for the appeal to have been presented within time. And then at paragraph 13: "
The Tribunal unanimously concluded that it was reasonably practicable for the Appeal to have been presented within time despite the Appellant's illness. In coming to that decision the Tribunal in particular noted that the Appellant wrote to the Health & Safety Executive during the 21 days period. In those circumstances the Tribunal cannot extend the period for making the appeal and accordingly the appeal is out of time and is dismissed."[11]Just posing to reflect on that expression 'Reasonable Practicability', a reference needs to be made to London Underground v Noel [1999] IRLR 621 CA, in particular paragraphs 12-14 and paragraph 29. The Court of Appeal there said, resting on earlier cases, that so far as concerned reasonable practicability the Employment Tribunal should ask colloquially and untrammelled by too much legal logic whether it was reasonably feasible to present the complaint to the body concerned here the Employment Tribunal within the prescribed time. The case emphasises too, that reasonable practicability is very much a matter of fact for the Employment Tribunal itself. That, of course, makes an appeal, if it is limited to points of law, very difficult for an Appellant.[12]So, the position was that on 18 September 2000 the Employment Tribunal had sent out its decision indicating to Mr Cuthbert that his Appeal to the Employment Tribunal was not to be entertained. On 13 October 2000 Mr Cuthbert wrote to the Employment Tribunal at Croydon saying he wished to appeal but notice that the indication was sent to the Employment Tribunal and not to the Employment Appeal Tribunal. They are quite different bodies and a notice to one is not notice to the other; see, for example, Duke v Prospect Training Services [1988] ICR 521 EAT and Martin v British Railways Board [1989] ICR 24 EAT. The Employment Appeal Tribunal itself received nothing from Mr Cuthbert until 26 February 2001 when it received a letter which could fairly be taken to be an appeal against the Employment Tribunal's decision.[13]On 28 February 2001 the Employment Appeal Tribunal wrote back to Mr Cuthbert saying:
"I refer to your Notice of Appeal from the decision of the Employment Tribunal held at London South and sent to the parties on 18 September 2000. It was received here on the 26 February 2001 and is therefore 119 day(s) out of time. Accordingly paragraphs 3 of the Practice Direction is being applied. If therefore you wish to pursue the matter you must let me have your application to extend time within which to lodge your Notice of Appeal together with your reason(s) for the lateness."
To take up a point we will have to refer to later, it was not indicated to Mr Cuthbert that the Appeal should not have been to the Employment Appeal Tribunal. That letter rather assumes that, the issue of lateness apart, the matter was an appropriate one for the Employment Appeal Tribunal. I mention that because Mr Cuthbert may need to go off in other directions later.[14]Then on 20 March, 7 April and 19 April 2001 there was some spirited correspondence to the Employment Appeal Tribunal from Mr Cuthbert but on 25 April 2001 the Registrar made an Order. I will not read all of it but the last passages say:
"IT IS CONSIDERED 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 AND IT IS ORDERED that the application for an extension of time in which to present the notice of appeal is refused"
And again one notices there had been no suggestion that the appeal should not have been to the Employment Appeal Tribunal in the first place.[15]On 1 May 2001 Mr Cuthbert appealed against the Registrar's Order. At this point, 2 quite different approaches need to be considered and I will call the first one (a) and it is on the assumption that appeal from the Employment Tribunal lies to the Employment Appeal Tribunal in Health & Safety improvement notice cases. I am not for a moment saying that that is a correct assumption but I shall make that assumption for the moment.[16]The period for appeal to the Employment Appeal Tribunal, if that assumption is correct, is 42 days from the date on which extended written reasons for the decision were sent to the Appellant; see EAT Rule 3(2). When was that date? At first glance the answer to that will be on 18 September 2000. However, the heading to the reasons sent to Mr Cuthbert and to the parties does not say "Extended Reasons" but simply the word "Reasons". The Employment Tribunal had, in fact, failed to comply with the Employment Tribunals Rule 10(3), which is in the Butterworths handbook at page 1227 where one finds:
"The tribunal shall give reasons for its decision in a document signed by the chairman. That document shall contain a statement as to whether the reasons are given in summary or extended form."
There is no hint that the Extended Reasons had been requested nor was this a case where Extended Reasons were obligatory. I see no reason why Mr Cuthbert should have taken the reasons to have been Extended Reasons. The word 'Extended' is not there, the word 'Full' is not there and if there is any doubt Mr Cuthbert should be given the benefit of it.[17]If that is a correct approach then time for appeal against the Employment Tribunal's Order has not only expired, it has not even begun, because no Extended Reasons have been served. I say that because the Employment Appeal Tribunal's Rules require the 42 days to start running when Extended Written Reasons are sent to the Appellant - see Employment Appeal Tribunals Rules 1993 3(2). So, on the assumption I am making of this part of the argument, Mr Cuthbert's proper course would be to write to the Employment Tribunal asking for a corrected copy complying with Rule 10(3) and if the answer were to come back that the reasons already served were intended to be Extended Reasons then to appeal within 42 days and if the answer came back that they were merely summary it would be for him then to request extended reasons within 21 days and on getting the extended reasons, if he was still minded to appeal, to appeal.[18]All that is on the basis of an assumption as I have mentioned that appeal in such cases moves from the Employment Tribunal to the Employment Appeal Tribunal but the second approach which I will mark (b) is on the footing that no case is shown for the appeal from the Employment Tribunal to go to the Employment Appeal Tribunal. I have not been able to establish that appeal in such cases is to this Employment Appeal Tribunal. The jurisdiction of the Employment Appeal Tribunal is fixed by statute. Section 21 of the Employment Tribunals Act 1996 provides:
"(1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an [employment tribunal] under or by virtue of – And then under (a) – (j) inclusive it specifies a whole number of legislative provisions where the appeal is to come to the Employment Appeal Tribunal. That list does not include the Health & Safety Act 1974, or indeed, any other Health & Safety matters. Subsection (3) of Section 21 says: "(3) Subsection (1) does not affect any provision contained in, or made under any Act which provides for an appeal to lie to the Appeal Tribunal (whether from an [employment tribunal], the Certification Officer or any other person or body) otherwise than on a question to which that subsection applies."
And subsection (4) says:
"[(4) The Appeal Tribunal also has any jurisdiction in respect of matters other than appeals which is conferred on it by or under – (a) the Trade Union and Labour Relations (Consolidation) Act 1992, (b) this Act, or (c) any other Act.]"
[20]I have not been able to find anything that suggests that Health & Safety at Work Act appeals are to come from the Employment Tribunal to the Employment Appeal Tribunal. I approached the matter with some diffidence as no one before me is a lawyer and Mr Jopling tells me that he has no experience of an appeal from the Employment Tribunal in an Improvement Notice case. So there is no history familiar to any one in front of me as to where appeals go to.[21]Accordingly, I do approach the matter with some diffidence but, on the other hand, I gain some confidence from a letter written by the Employment Tribunal to the Registrar of the Employment Appeal Tribunal on 14 May 2001 that says this:
"In response to a Notice of Appeal received on 10 May 2001, the Chairman wishes me to point out that by letter of 10 November 2000, the Applicant was informed that his appeal should be submitted to the High Court (not the EAT), as it is an appeal against an H&S enforcement notice."
[22]Moreover, I made reference earlier to the form ITL 19 and Mr Cuthbert does not resist the view that such notices are sent out and that he received one and it does have a heading "Appeals":- "You have a right to appeal against the Tribunal's decision on a point of law to the High Court or in Scotland to the Court of Session. When you receive a copy of the decision you will also receive information about your right of appeal. If you decide to appeal you must give written notice to the appropriate court within 42 days of the date on which the Tribunal's decision is entered in the Register as shown on the copy sent to you." And that reference to "you have a right to appeal against the Tribunal's decision" is plainly a reference to the decision of the Employment Tribunal not of this Appeal Tribunal.[23]In the absence of my finding any reference to appeals under the Health & Safety Act going from the Employment Tribunal to the Employment Appeal Tribunal I can only conclude that my basis (b) is the only one open to me and that the basis (a) which I earlier explained is not open to me.[24]It seems, in other words, that the notice of appeal to the Employment Appeal Tribunal cannot be entertained by the Employment Appeal Tribunal simply because it has no jurisdiction to do so. The Registrar in a sense was right for the wrong reasons. She was right not to entertain the appeal not on the grounds of lateness of time but simply because there is no jurisdiction to entertain it. Accordingly, as it seems to me, I must dismiss the Appeal.[25]If, within a reasonable time either side discovers that there is indeed an appeal from the Employment Tribunal to the Employment Appeal Tribunal in such matters I would welcome the opportunity of reviewing my present decision. But I have been unable to find anything that suggests the appeal should have come here and for that reason, as I say, I must dismiss the Appeal.