MISS T SANTO v CCL LEISURE LTD [2001] UKEAT 0347_01_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0347_01_1907Case No Appeal No. PA/0347/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS T SANTOAPPELLANTCCL LEISURE LTDRESPONDENT
Before
Mr Justice LindsayDate 19 July 2001
[1]APPEARANCES For the Appellant THE APPELLANT In Person For the Respondent NO APPEARANCE BY OR ON BEHALF OF RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) I have before me an Appeal in the matter Miss T Santo v CCL Leisure Ltd . Miss Santo appeals against the Registrar's refusal to extend time for the lodging of the Notice of Appeal. Miss Santo is in person and no one appears on the part of CCL Leisure.[2]On 8 October 1999 Miss Santo applied to the Employment Tribunal by way of an IT1 Originating Application for relief in respect of unfair dismissal, sex discrimination, unpaid holiday pay and wages. On 9 November 1999 CCL Leisure as her employer put in its IT3 claiming that she had been dismissed for gross misconduct, theft or fraud. On 30 and 31 May 2000 there was a hearing at the Employment Tribunal and on 23 June 2000 the decision of the Tribunal was sent to the parties.[3]It was the decision of the Tribunal at London South under the chairmanship of Mr D N Milton and it was unanimous and it was:(i) the Applicant was unfairly dismissed;(ii) the claim of sex discrimination and/or pregnancy related dismissal is unsuccessful;(iii) the Respondent is ordered to pay to the Applicant a basic award in the sum of £115.38 and a compensatory award consisting of five weeks' net pay £897.70 and £200 for loss of statutory rights;(iv) by consent, the Respondent is ordered to pay additionally the sum of £99 outstanding wages.[4]The conventional practice of the Employment Tribunal, when sending out a decision, certainly a full one such as that, is that it sends out also a booklet or note that explains how appeals may be conducted. It gives the address of the Employment Appeal Tribunal. It identifies the Employment Appeal Tribunal as the person to whom appeals go and it gives the period within which appeals may be lodged, namely 42 days from the sending out of the decision.[5]So, 42 days began to run against Miss Santo on 23 June 2000. On 25 June 2000 Miss Santo wrote a 3 page typed letter to the Employment Tribunal including a request for and giving grounds for a review of their decision. On 26 July she wrote again to the Employment Tribunal in connection with the review. On 4 August 2000 the 42-day period expired. The application for a review was presumably unsuccessful. In fact the papers for that part of the case are not before me.[6]On 16 February 2001 Miss Santo appears to have put a date to a Notice of Appeal. On 23 February 2001 the Notice of Appeal was received by the Employment Appeal Tribunal and it was, if I might so describe it, home made. It appears to be signed by Miss Santo in her hand. On 13 March 2001 the Employment Appeal Tribunal wrote to Miss Santo indicating that her Notice of Appeal was 203 days out of time.[7]On 9 April 2001 Miss Santo advanced reasons for the delay which had occurred. She said:
"I apologise for applying for my appeal late. This was because I thought it would be covered in the review. Alongside this my long-term sickness has unabled me to concentrate fully on many things including the issues of the appeal tribunal. Thank you."
[8]On 17 April the employer's solicitors resisted any extension of time. They said this:
"The Respondent's view is that the application for an extension of time should be refused: a. Ms Santo has had conduct of this matter throughout and has shown herself to be capable of marshalling and arguing her case and of understanding the procedures involved (as commented upon by the Employment Tribunal). The notes accompanying the decision of the Employment Tribunal set out the grounds on which an application for a Review and/or an Appeal may be made; the obligation to pursue any appeal regardless of a review; and the strict time limits involved. The Applicant can have been under no doubt as to the deferring nature of an appeal and a review and clearly took the view that she had better grounds for arguing on the latter than for the former. Having made that decision and having unsuccessfully pursued a review, the Applicant cannot reasonably expect the indulgence of the Court to allow her to now commence an appeal. b. The decision against which the Applicant now wishes to appeal was sent to her on 23 June 2000. The Respondent should, reasonably, be able to rely on the length of time that has passed as providing certainty to those matters which were determined and not appealed. c. The Applicant has not shown the "rare and exceptional" circumstances for allowing the appeal to be heard out of time that would normally be required."
[9]So it is quite an argument raised on the part of the employer. On 27 April 2001 Miss Santo returned in correspondence to claim that sickness had delayed her as also had the review, which she had thought would cover all aspects of her case. She was, she said, depressed, meaning, I think, in that sense clinically depressed and on medication for depression. Her long term sickness was, in effect, she said, caused by the events in the case and the proceedings and she needed to appeal in order not merely to serve the interests of justice but the interests of her own health.[10]On 9 May 2001 the Registrar made an Order. It said:
"AND UPON FURTHER CONSIDEREATION of the judgment given in the UNITED ARAB EMIRATES v MR ADDELGHAFAR with special attention paid to 71C "there is no excuse, even in the case of an unrepresented party, for the ignorance of time limits"
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"[11]On 23 May the Employment Appeal Tribunal received a letter treated as a Notice of Appeal against the Registrar's Order. And since then there has been a Skeleton Argument from Miss Santo and this morning she has handed in a nicely prepared series of sheets which have a heading " Rare and exceptional reasons for lateness of application for appeal " where she mentions again the question of sickness. She claims that she was not sent adequate information. She mentions that she had thought that the review would cover everything sufficiently. She mentions problems with post and she mentions family commitments. She has a young baby who occupies all of her time and that obviously puts difficulties in her way.[12]The delay here is exceptional. It is 203 days. When a decision of the Employment Tribunal is sent out it goes out with a clear note which explains that Appeals are to the Employment Appeal Tribunal that they are to be lodged within 42 days of the sending out of the decision. The address of the Employment Appeal Tribunal is given and it also made clear that the pendency of a review is not to be taken as a ground for delaying the lodging of a notice of appeal.[13]That is one consideration. Secondly, whilst there are, no doubt, cases where a short delay on medical grounds can be accepted even though no medical evidence properly-so-called substantiates the medical grounds relied upon, when one has the delay of the order that is in play here, 203 days, one cannot accept a medical ground for delay without some comprehensive medical evidence and for the Appellant merely to assert depression or medication does not suffice. There is no medical evidence.[14]Moreover, Miss Santo had shown herself able to prepare and submit a reasoned application for a review on 25 June 2000 and to return to the subject on 26 July 2000 and to have lodged a home made appeal notice to the Employment Appeal Tribunal on 23 February 2001. If she was able to compose those then it is difficult to see why she should not have been able to compose a notice of appeal within the 42 day period, which is a longer period than most jurisdictions afford for the lodging of notice of appeal.[15]The Employment Appeal Tribunal takes a relatively strict line in these matters. That can be seen from the decision of Abdelghafar which is referred to in the Tribunal's decision and also in the more recent case in the Court of Appeal Aziz v Bethnal Green . In that Aziz case it was argued that the Employment Appeal Tribunal took a stricter line as to time than did the Court of Appeal with cases where the Appeal was direct to the Court of Appeal and the stricter line was attacked.[16]However, the Court of Appeal did nothing to discourage the continuation of the practice of the Employment Appeal Tribunal to take a strict line and it is not uncommon for Notice of Appeals to be refused even if they are only one day late. One can see therefore that a delay of 203 days would take a great deal of justification and that I have not been able to find.[17]The underlying merits of the Appeal play a relatively small part in this exercise because if one had to find out how strong the merits are one would in effect to be hearing the appeal in order to judge whether it should be heard, which would be an absurd position to be arrived at. Unless the underlying merits are plainly those of a case almost bound to succeed or alternatively almost bound to fail the underlying merits play little part. In this case, in my judgment, should play only a little part.[18]I have not been able to find any good reason for the exceptional course of granting an extension time and accordingly I must dismiss the Appeal.