MRS CAROL ANN DUMPLETON v LINCOLNSHIRE COUNTY COUNCIL [2001] UKEAT 1145_00_2401

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1145_00_2401

Case No Appeal No. PA/1145/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS CAROL ANN DUMPLETONAPPELLANT

LINCOLNSHIRE COUNTY COUNCILRESPONDENT

Before

Mr Justice Lindsay

Date 24 January 2001

[1]APPEARANCES For the Appellant MR R DUMPLETON (Husband) For the Respondents THE RESPODNENTS NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : I have before me the appeal of Mrs Carol Ann Dumpleton in the matter Dumpleton v Lincolnshire County Council . Today Mrs Dumpleton has been represented by her husband who, I think, also spoke on her behalf below. Mrs Dumpleton appeals against the Registrar's refusal to extend time for the lodging of a Notice of Appeal. There is quite a complicated chronology in this matter. It begins, for practical purposes, on 26th May 1999 when Mrs Dumpleton lodged her IT1 for unfair dismissal and what she described as incitement to breach of contract. At that point there were three different named respondents.

[2]On 9th July 1999 Lincolnshire County Council put in an IT3. They claimed that Mrs Dumpleton had only been on a temporary contract and that the temporary contract had expired and that no term of her contract had been breached.

[3]A question was then raised by one or other of the respondents of the three who were then named as to which, if any, had truly been Mrs Dumpleton's employer.

[4]On 31st January and 9th February 2000 there was a hearing at the Employment Tribunal of a preliminary point as to who the employer truly was.

[5]On 24th March 2000 the decision was sent to the parties that Lincolnshire County Council was the employer and the case against the other two named respondents was dismissed.

[6]As time for lodging a Notice of Appeal runs from the sending out of the decision to the parties and as that decision was sent out on 24th March 2000, then it was on 5th May 2000 that 42 days from that date expired. So calling that decision 'Decision 1', the time for appealing against Decision 1 expired on 5th May 2000.

[7]The case went forward. On 15th June 2000 there was a hearing at the Employment Tribunal and an adjournment was sought on behalf of Mrs Dumpleton but was refused. Unusually, that application for an adjournment met with a formal decision with written reasons being sent for it, sent to the parties on 16th June 2000. So that was 'Decision 2'.

[8]On 16th June the hearing continued on the merits and on 12th July 2000 a decision on the merits was sent to the parties; that decision we might call 'Decision 3'. The decision was unanimous. It was the decision of Mr G Solomons sitting with two members, Mrs T A Clarke and Mr N Haynes, and was that:

"(1) The applicant was not unfairly dismissed by the respondents (2) The respondents did not make an unauthorised deduction from the Applicant's wages."

That, as I say, was sent to the parties on 12th July 2000 and is endorsed and registered to that end.

[9]On 28th July 2000, 42 days from 16th June 2000 expired and so on that day time for appealing Decision 2 expired.

[10]On 23rd August 2000 time for a Notice of Appeal against Decision 3 of 12th July expired.

[11]On 29th August 2000 a date was put on a Notice of Appeal on the part of Mrs Dumpleton. It is a slightly odd Notice of Appeal in the sense that under heading 3 "The appellant appeals from (here give particulars of the decision of the employment tribunal from which the appeal is brought including the date)." It says:

"Decision given to respondent – Lincolnshire County Council on 15 June 2000."

So, on the face of things, it was only appealing against the decision not to adjourn, Decision 2, sent to the parties on 16th June 2000. The date of 29th August 2000 was put on the Notice of Appeal by or on behalf of Mrs Dumpleton, but it was not received on that day. It was actually posted to the Employment Appeal Tribunal on 1st September 2000; that is quite plain from the postmark on the envelope in which it arrived at the EAT. It actually arrived at the EAT on 4th September 2000.

[12]Mrs Dumpleton claims not to have received a decision; that appears in a note of 29th August 2000, signed by Mrs Dumpleton, addressed "To whom it may concern" that says this:

"I must apologize for the delay in making my appeal, but I did not receive the Chairman's Promulgation until 15 August 2000. I was told at Tribunal I would have to wait a few weeks for the Extended Reasons as the Tribunal offices were very busy. So I waited because, when I had the Preliminary Hearings I had to wait about six weeks for the Chairman's Extended Reasons. However, when it got to August I rang the Tribunal offices and inquired as to when I would receive the Promulgation, and was told that they had been sent to me in July. I never received them. So a Mr Graham Stafford sent me a copy of them on 14 August 2000. Since then I have been compiling my appeal."

When it says at the beginning "I did not receive the Chairman's Promulgation", it is not entirely clear to what promulgation it was referring. It can, I think, only be referring to the decision sent out on 12th July 2000, Decision 3, because Decision 2, which was relative to the hearing on 15th June 2000 and reasons in relation to which were sent out on 16th June 2000, would not have led the tribunal to saying that a few weeks had to be waited for the extended reasons because they were sent on the very next day after the oral hearing. But from that note that I have read, it appears that shortly after the 14th August 2000 (and, in fact, it later appears that the relevant date is 15th August 2000) Mrs Dumpleton had a copy in her hands of Decision 3, the decision that had been sent out on 12th July 2000.

[13]The papers prepared by Mrs Dumpleton on and around 29th August and received on 4th September 2000 at the EAT can, I think, be taken to indicate a wish to appeal against more than one decision, though the language is not entirely clear.

[14]It was recognised by the Employment Appeal Tribunal that Mrs Dumpleton was out of time and that she was asking for an extension of time. On 5th September 2000 the Employment Appeal Tribunal, as it normally does in these cases, asked the respondents, Lincolnshire County Council, as to what their views were on the granting or withholding of an extension of time. On 7th September 2000 the Council wrote a letter to the Employment Appeal Tribunal, received on 8th September 2000, arguing that so far as concerned the decision of 24th March 2000 Mrs Dumpleton was seeking an extension of 17 weeks; as to the decision of 16th June 2000 she was seeking an extension of 5 weeks and, as to the decision of 12th July 2000 she was seeking an extension of 12 days, without, they say, any adequate explanation of delay being given.

[15]On 18th September 2000 the Employment Appeal Tribunal invited final submissions from Mrs Dumpleton. On 29th September 2000 Mrs Dumpleton in answer raised for the first time a complaint that the Chairman on 15th and 16th June 2000, Mr Goodchild, had had some undeclared interest in the case and indicated that a formal complaint by her was being considered. I mention that only to say that none has been received, at any rate by the EAT. On the same day, 29th September 2000, Mrs Dumpleton by her husband, as representative, wrote as to the reasons for the delay in providing a Notice of Appeal. It is impossible to discern any explanation of reasons for failure to lodge a Notice of Appeal in time save for that that had already been mentioned, namely, that the decision promulgated on 12th July 2000 - Decision 3 – had simply not been received by the Dumpletons in the ordinary course of post and, indeed, had not been received until 15th August 2000.

[16]On 4th October 2000 the Registrar made an Order that said towards the end of the

[17]On 6th October 2000 Mrs Dumpleton appealed against the Registrar's Order. In writing on 6th October 2000, she says (via her husband):

"I didn't take my own good time in placing this appeal and I did not think or assume that I had had 42 days on the late receipt of the Chairman's Promulgations, I was confident that I has 42 days. … I do agree with Miss Selio [ the Registrar ] that there was sufficient time remaining to place our appeal. … THE ONLY EXCUSE THAT WE HAVE IS THAT WE WERE FIRMLY OF THE OPINION THAT WE HAD 42 DAYS FROM THE RECEIPT OF THE CHAIRMAN'S PROMULGATIONS WHICH WE RECEIVED ON 15 AUGUST 2000."

Mr Dumpleton, on his wife's behalf, has advanced corresponding arguments before me today with vigour and there is no doubt at all that Mr and Mrs Dumpleton feel strongly that they have not yet had a fair crack of the whip, that they have not had their day in court and that the appeal really needs to go forward.

[18]Now what is the position in relation to Notices of Appeal lodged out of time? When Employment Tribunal decisions are sent out to parties they are accompanied by a leaflet which explains how appeals can be made and to whom and within what time period. The literature sent out makes it crystal clear that it is the sending out of the decisions (the extended reasons) which sets the 42 days allowed for an appeal running. The Employment Appeal Tribunal rules are clear and are to the same effect - see Employment Appeal Tribunal Rule 3(2).

[19]There is, unfortunately from Mr and Mrs Dumpleton's point of view, no ground whatsoever for a belief in an appellant that he or she has 42 days from his or her receipt of the extended reasons. Moreover, in the UAE v Abdelghafar case, which was mentioned in the Registrar's order,

[1995] ICR 65

at page 71, it is made quite plain that ignorance of the appropriate time limit (save in exceptional circumstances and where those exceptional circumstances are proved to the satisfaction of the Employment Appeal Tribunal) is not to be taken as an acceptable reason for failure to lodge Notices of Appeal in time. Further, in the case Aziz v Bethnal Green C.A , the argument was raised that the Employment Appeal Tribunal's approach to Notices out of time was more strict even than that applied by the Court of Appeal to its own cases and that that was inappropriate. But the relatively strict practice observed here at the Employment Appeal Tribunal met with no disapproval on the part of the Court of Appeal.

[20]The appellant, Mrs Dumpleton, expressly accepts that the interval between the 15th August 2000 (that is to say her receipt of the decision that had been initially sent out on 12th July 2000) and the 23rd August 2000, the expiry of 42 days from 12th July 2000, was sufficient for the presentation of a Notice of Appeal. The only remaining reason for delay is the belief, on Mr and Mrs Dumpleton's part, that time ran from their receipt of the decision rather than its sending out. That, as I have indicated, is habitually held not to be a good reason. So, even accepting, without formal evidence to such effect, that the decision of the 12th July 2000 was not received until 15th August 2000, even accepting that, no good reason or no reason regarded in law in this area as being a good reason has been shown for the delay. Of course, still less is there any exceptional reason for delay as to decisions promulgated on 24th March and 16th June 2000.

[21]Accordingly, albeit with some regret, because I recognise the strength of feeling on Mr and Mrs Dumpleton's part, I have no ground in law for undoing the Registrar's Order. The Abdelghafar case shows that, first of all, what is regarded in law as a good reason for the delay has to be shown and then it has to be considered whether, in the particular facts of the case, that good reason as so shown amounts to a good ground for the exceptional and indulgent course of granting an extension of time. Here, unfortunately from their point of view, no good reason has been shown for that exceptional course and I must dismiss the appeal and accordingly there is no grant of an extension of time.

Order

"AND UPON DUE CONSIDERATION of the fact that despite late receipt of the Employment Tribunal's Extended Reasons there still remained sufficient time in which to submit the Notice of appeal AND UPON FURTHER CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS there has been shown no good or 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"