MR N V BOWEN T/A NB CARS v MR B WALBY [2001] UKEAT 0349_01_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0349_01_1907Case No Appeal No.PA/0349/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N V BOWEN T/A NB CARSAPPELLANTMR B WALBYRESPONDENT
Before
Mr Justice LindsayDate 19 July 2001
[1]APPEARANCES For the Appellant NO APPEARANCE BY OR ON BEHALF OF APPELLANT MR JUSTICE LINDSAY (PRESIDENT) This is the appeal of Mr N Bowen who trades as NB Cars in the matter Mr Brian Walby v Mr Bowen t/a as NB Cars . Mr Bowen appeals against the Registrar's Order refusing an extension of time for the lodging of a Notice of Appeal. Both sides have indicated that they will not be attending today and so I give the judgment in the absence of both sides, neither is represented nor appears. I do have, though, a written argument from the Citizens Advice Bureau at Pontypridd on behalf of Mr Brian Walby. I have no written argument of any real dimension from Mr Bowen's side.[2]The position is this; that on 11 December 2000 there was a hearing at the Employment Tribunal. NB Cars had sent in a written argument but they said they were unable to attend or be represented on that day. On 13 December 2000 the decision was sent to the parties with reasons. The Tribunal which, was at Cardiff under the chairmanship of Mr M J Bird, said this:
"The unanimous decision of the tribunal is that the respondent made unauthorised deductions from wages contrary to Section 13 of the Employment Rights Act 1996. On that account he shall pay to the applicant the sum of £218 net. In addition the applicant was dismissed without notice when he should have been paid one week. He is entitled on that account to compensation of £129.14. The applicant has requested that the tribunal do not adjudicate on his claim to statutory sick pay."
And under the word 'reasons' it says the following are the 'full reasons' of the Tribunal. The more modern description of 'full reasons' is 'extended reasons' but it is plain that these were intended as what are properly now called extended reasons.[3]On 24 January 2001 the 42 days allowed for the lodging of a notice of appeal expired. On 1 February 2001 Mr Bowen appears to have put a date on a Notice of Appeal but whether that was truly the date of the preparation of the Notice of Appeal I am unable to say. More material is the fact that it was only on 5 March 2001 that the Employment Appeal Tribunal received the Notice of Appeal.[4]On 15 March the Employment Appeal Tribunal wrote to Mr Bowen telling him he was 34 days out of time and inviting him to say if he wished to apply for an extension of time and, if so, to give reasons for the lateness of his Notice of Appeal. On 16 March he said this:
"With reference to your letter of 15 th March 2001, we were led to believe by a member of your staff that we had extra time to appeal due to the Christmas and New Year holidays. Mr Bowen had taken annual leave and unfortunately I was taken down with a bad strain of flue. The Appeal was filed in a correspondence file to be dealt with and due to the above problems it was overlooked. I apologise for the delay and have been severely reprimanded by my employer for not bringing it to his attention. Again I can only apologise for the delay and would you please proceed with our appeal. Yours faithfully, Ms J R OWEN SECRETARY"
[5]On 21 March the Employment Appeal Tribunal wrote. It seems that it had permitted some relaxation of the time limits specified in the rules. The Employment Appeal Tribunal wrote as follows:
"It appears from your letter, that someone in the EAT informed you that you had extra time to appeal because of Christmas and New Year. However, that proviso applied only to Notices of Appeal that were received in the EAT between 21 st December 2000 and 5 th January 2001. Your Notice of Appeal, dated 1 st February 2001, was received in the EAT on 5 th March 2001 (as stated in my letter to you of 15 th March 2001). This means that you are not covered by that proviso. Accordingly, the Practice Direction (Employment Appeal Tribunal – Procedure) must apply in its entirety, which particular regard to Paragraph 3 thereof. For that reason, it is not yet possible to proceed with this appeal, and I would impress on you the need to comply with the Practice Direction, and to act on the contents of my letter to you of 15 th March 2001."
[6]On 3 April 2001 the Appellant revisited in correspondence the question of extension of time. On 13 April NB Cars, the Appellant, said this:
"Unfortunately we received no notification of any time limits with relation to Appeals."
[7]On 24 April 2001 the Registrar made an Order. It included this:
"AND UPON further consideration of the judgment given in UNITED ARAB EMIRATES AND ABDELGHAFAR with special attention paid to 71C which states "there is no excuse even in the case of an unrepresented party for the ignorance of time limits"
AND UPON consideration of the generous amount of time allowed for the parties to appeal even allowing for Christmas when the Employment Appeal Tribunal was closed for 3 days only IT IS CONSIDERED 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 AND IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused"[8]On 12 May 2001 a letter was received from the Appellant which the Employment Appeal Tribunal has treated as a Notice of Appeal against the Registrar's Order. On 3 July a written argument was received from Mr Walby's advisers and that is the state of the matter before me. I should mention that it is a conventional practice of the Employment Tribunal, when sending out full reasons as they did here on 13 December 2000, to send out a note or a booklet which indicates how appeals are to be conducted. If they are to be raised they are to go to the Employment Appeal Tribunal. It gives the address of the Employment Appeal Tribunal and it indicates that the 42 day period for the service of the Notice of Appeal runs from the sending out of the decision of the Employment Tribunal. The time does not run from the receipt by a prospective Appellant but from the sending out of the decision by the Employment Tribunal.[9]The only matter that troubles me here is the possibility of confusion arising out of the message given by the Employment Appeal Tribunal as to some proviso operating at or around the Christmas holiday period. However, NB Cars' understanding was that the extension or extra time was "due to the Christmas and New Year holidays" and no one could reasonably take that to justify delay down to 16 March or the 21 March.[10]That possibility aside, there seems to be no acceptable reason given for the Appellant's delay. No ground is afforded for my granting the exceptional relief of an extension of time. And, of course, no one from NB Cars has attended today to persuade the Tribunal here that it is proper that there should be an extension of time or that the Registrar was wrong in her Order.[11]The Employment Appeal Tribunal takes a relatively strict line on extensions of time. The Abdelghafar case which has already been touched upon in the Order of the Registrar gives guidance on the subject and in the Court of Appeal the case of Aziz v Bethnal Green shows that the relatively strict line taken by the Employment Appeal Tribunal was not in any way discouraged by the Court of Appeal.[12]Applying the guidelines in the Abdelghafar case and adopting the relatively strict line not disapproved in Aziz v Bethnal Green, it seems to me, as I mentioned, that there is here no ground for the exceptional relief of an extension of time and accordingly I dismiss the Appeal against the Registrar's Order, which therefore stands.