DAVISONS SOLICITORS v MS J WRIGHT [2001] UKEAT 0447_00_0805

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0447_00_0805

Case No Potential Appeal No. PA/0447/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DAVISONS SOLICITORSAPPELLANT

MS J WRIGHTRESPONDENT

Before

Mr Justice Lindsay

Date 8 May 2001

[1]APPEARANCES For the Appellant MR ROY LEWIS (of Counsel) Davisons Solicitors 63-65 Beckbury Road Wooley Castle Birmingham B29 5HS For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) I have before me the appeal of Messrs Davisons, Solicitors, in the matter that began below as Ms Wright v Davisons, Solicitors . Ms Wright lodged an IT1 for breach of contract and for wrongful dismissal. In July of 1999, Davisons put in an IT3. On 18 October 1999 and 14 January 2000 there was a hearing at the Employment Tribunal in Birmingham. On 26 January 2000, the decision was sent to the parties with extended reasons. It was the decision of the Employment Tribunal under the chairmanship of Mr Caborn. It was unanimous and was that the Applicant, Ms Wright, had been dismissed in breach of contract and that the Respondents, Davisons, were required to pay her £9,127.64.

[2]On 3 March a Notice of Appeal was sent by Davisons to the Employment Tribunal, not, it is to be noted, to the Employment Appeal Tribunal, but to the Employment Tribunal, albeit headed "Employment Appeals Department" The Notice of Appeal was also sent to Ms Wright's solicitors. On 9 March, the 42 days limited to run from the date on which the decision was sent to the parties, 26 January, expired. At the expiry, no Notice of Appeal had yet been received by the Employment Appeal Tribunal.

[3]On 5 April, the Employment Tribunal wrote to Davisons saying that appeals should be lodged directly with the Employment Appeal Tribunal and indicated that they had forwarded the Notice of Appeal that they had received on to the Employment Appeal Tribunal. The Employment Appeal Tribunal received it, it would seem, on 7 April. On that same day, the Respondent firm, Davisons Solicitors, wrote to the Employment Appeal Tribunal. On 9 May, Ms Wright's solicitors opposed any extension of time. On 18 May, Mr Sadiq, who had had the conduct of the preparation of the Notice of Appeal at Davisons, wrote to indicate that he had been told to lodge the papers with the Employment Tribunal.

[4]On 22 May, the Registrar made an order that said at its end:

"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 Rule 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."

On 24 May, Davisons appealed against that decision. Importantly, on 10 October, Penny Evans, a secretary at Davisons, swore an affidavit saying that she had 'phoned Birmingham Tribunal on 3 March and that the Birmingham Tribunal had indicated to her that the Notice of Appeal should be sent to Birmingham. She said: "On 3 March 2000, under the direct instruction of Mr Sadiq, I had been required to telephone the Birmingham Employment Tribunal Office to ask where a Notice of Appeal against an Employment Tribunal Decision should be sent. Following his instructions, I telephoned the Tribunal Office at Phoenix House, Birmingham and spoke to a representative there. I clearly informed the person that the document which the firm needed to lodge was a Notice of Appeal and that we wished to send it by fax so as to ensure that it arrived at the appropriate office before the end of the 42 days period for appealing, which would elapse on 8 March after the weekend break. I was told by said person that the Notice of Appeal should be sent directly to the Birmingham Employment Tribunal at Phoenix House, for which I already had the fax number. I attach hereto a copy of the telephone attendance record which I made immediately at the time." and she has, indeed, attached that attendance note. That, as I say, was sworn on the 10 October. The matter came before me on 13 October, when I did raise some doubts as to the evidence, which, in some respects, was incomplete, and the matter was adjourned for further evidence to be considered and, if thought fit, sworn by Davisons, or, indeed, by anyone else.

[5]On 17 January 2001, Davisons adduced further evidence. First of all there was further evidence by Penny Evans, and, secondly and importantly, an affidavit from Umran Sadiq. He said that he had not seen any accompanying leaflet as to appeal procedures included within the papers. I pause here to say that in the general course of conduct, Employment Tribunals send out leaflets explaining just how an appeal is to be dealt with if an appeal is intended He said that, not seeing any accompanying leaflet, he, being inexperienced in employment law because normally he conducts other kinds of work, asked Penny Evans to 'phone the Birmingham Employment Tribunal. When she reported back, she told him that she had been told to send the Notice of Appeal to the Birmingham Employment Tribunal. He then set about faxing it immediately to that Tribunal and also to the Respondent's solicitors. He wrote to Birmingham on 28 March. On 6 April, Birmingham indicated that they had sent on the appeal to the Employment Appeal Tribunal.

[6]It is, unfortunately, not uncommon for Appellants, notwithstanding the habitual sending out of leaflets explaining how appeals are to be directed, to send their appeals to the Employment Tribunal. The papers received by the Employment Tribunal are sometimes taken to be a request for a review, or, alternatively, they await treatment as being outside the ordinary press of business of the Employment Tribunal and hence come to be delayed. To have sent the papers to the wrong body, namely, to the Employment Tribunal, is in general not taken to represent a good reason for an application for an extension of time. However, there are here a number of distinguishing features. First of all, the Notice of Appeal was sent in time to the Respondents. Secondly, that the papers were intended to be an appeal, as opposed to a review, for example, was reinforced by the papers being addressed to the "Employment Appeals Department" at the Employment Tribunal, and being clearly headed "Notice of Appeal". Thirdly, there is uncontradicted evidence by Penny Evans and Umran Sadiq that Mr Sadiq, the solicitor dealing with the matter, asked his secretary, Ms Evans, within the time, to ask the Employment Tribunal where to send the Notice of Appeal and that the Employment Tribunal replied, wrongly, that is should be sent to Employment Tribunal. Mr Sadiq so swears and so does Ms Evans. Mr Sadiq also swears that he did not see any accompanying leaflet but quite how much value that adds to the case is unclear, because he does not say that it was he who opened the envelope, so it is quite consistent with the accompanying leaflet having been sent out in the first place but somehow being misplaced in the office.

[7]The doubts that I raised, on 13 August (I do not need to explore them further) have been laid to rest by the further evidence. There is now, therefore, evidence that the Appellant was misled by the Employment Tribunal. As the firm, Davisons, was in time sending the Notice of Appeal to the person to whom they had been misdirected, namely, the Employment Tribunal, I have no reason to think that they would have been out of time if they had been properly directed at the time when, instead, they had been misdirected.

[8]I have a good deal more material than had been laid before the Registrar when she dealt with the matter. The evidence of any substance began only on 10 October 2000, whereas the Registrar's order was in May 2000. It seems to me, that, given that the uncontradicted evidence is that the Appellant was misled, I am in a position to allow the appeal. I do so and I extend time for the lodging of a Notice of Appeal to 17 April 2000, which is the date stamped on the copy of the Notice of Appeal indicating its receipt that day by the Employment Appeal Tribunal. I make that order allowing the appeal and extending time for the lodging of the Notice of Appeal so as to validate the Notice that has already been received. Mr Lewis, anything else I can do today? No Sir.