MISS S DELANEY v NORD ANGLIA INTERNATIONAL LTD [2001] UKEAT 1201_00_0907

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1201_00_0907

Case No Appeal No. PA/1201/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS S DELANEYAPPELLANT

NORD ANGLIA INTERNATIONAL LTDRESPONDENT

Before

Mr Justice Lindsay

Date 9 July 2001

[1]APPEARANCES For the Appellant NO APPEARANCE ON OR ON BEHALF OF APPELLANT For the Respondent MR P T ROSE (Of Counsel) Instructed by Messrs Hammond Suddards 16 John Dalton Street Manchester M60 8HS MR JUSTICE LINDSAY (PRESIDENT) I have before me an Appeal by Miss S Delaney in the matter Delaney v Nord Anglia International Ltd . Miss Delaney appeals against the Registrar's refusal to extend time for the lodging of a Notice of Appeal. Today Miss Delaney, the Appellant, does not attend. I am told that she phoned early this morning to say that she was ill but went on to invite the Employment Appeal Tribunal to deal with the matter on the papers. Nord Anglia International Ltd appears by Mr Paul Rose and, given Miss Delaney's invitation, the matter has proceeded on the papers.

[2]On 2 November 1999 Miss Delaney lodged an IT1 for sex discrimination. On 27 April there was a hearing before a panel of 3 at the Employment Tribunal on a procedural issue and on 30 June 2000 the decision on that procedural issue was sent to the parties. It concerned whether a Mr McNeany should be or should not be dismissed from the proceedings and that has led to a quite separate Appeal.

[3]The matter (in the absence of Mr McNeany, because at the procedural hearing it was ruled that he should not remain a Respondent) proceeded and was heard between 3 and 6 July. There was a hearing spread over some 4 days on the merits. On 31 July the decision on the merits was sent to the parties. It was ruled that Miss Delaney was not discriminated against on sexual grounds.

[4]The decision was of the Tribunal at Manchester under the chairmanship of Mr P J Russell sitting with Mr Bell and Ms Ensall and it was:

"The unanimous decision of the Tribunal is that the applicant was not discriminated against in breach of the Sex Discrimination Act 1975."

[5]I will come back later to the telephone call that seems to have occurred between Miss Delaney and the Employment Appeal Tribunal in the interval between 31 July, the sending out of the decision to the parties, and the expiry of the 42 day period on 11 September but to proceed with the chronology, on 11 September Miss Delaney sent a fax to the Employment Appeal Tribunal. It was addressed to Mr Nigel Cookson at the Employment Appeal Tribunal. It says:

"I shall be faxing over my appeal from tomorrow as due to illness and awaiting the new evidence from Reading Tribunal Offices regarding the same men, where they were found unreliable and responsible for UNFAIRLY DISMISSING 5 MEMBERS OF STAFF (4 OF WHOM WERE WOMEN). I was unable to send the form earlier. I hope this is acceptable. If you require any further information, please do not hesitate to contact me."

[6]So, there she is, on the last day of the 42 days, indicating that she would be faxing over her Appeal form the next day, which, of course, would be out of time. On 11 September, the 42 day period expired and on 12 September the Notice of Appeal was received by the Employment Appeal Tribunal. It strangely bears date the 10 September but there is no doubt but that it was not received until the 12 th ; there is no suggestion that it had sent earlier than the 12 th and it says, in paragraph 6:

"The grounds upon which this appeal is brought are that the employment tribunal erred in law in that (here set out in paragraphs the various grounds of appeal):- And then, of course, it is for filling out by the Appellant. Its says : (1) Manchester Tribunal have been biased against me from the 1 st Directions Hearing in this case (see attached letter) which was written but not sent (2) New guidance has come to light about the real character and reliability of those who gave evidence (3) The Chairman was biased – he even quotes the Barrister in his Extended Reasons"

Then there is a little rider. It says: "See attached" And attached to that were several pages amplifying Miss Delaney's complaints. As I have said, it bears date the 10 September, which is very strange. If that was the date it was completed then it is strange that it was not faxed off or sent off immediately to the Employment Appeal Tribunal. If that was not the date, then presumably it was deliberately misstated. Anyhow, Miss Delaney has no explanation of that.

[7]In the accompanying letter there was a wide ranging attack on the competence and fairness of the Employment Tribunal but in terms of reasons relating to being out of time with the lodging of the Notice of Appeal there were only 2 passages that bear on that in the amplification. She says:

"I believe that my application is still within the 42 days as the decision was only put in the post to me at the earliest on 31 st July, therefore I did not receive it until the next day. On receipt of the document I was sick from work for 3 days due to the nature of the extended reasons sent by the Chairman Mr P. J. Russell."

That first point is misconceived. The regulations and the explanatory notes that are sent out with decisions, certainly with decisions that have extended reasons, make it quite clear that the 42 day period, which is itself a generous period, runs not from a party's receipt of what he has been sent but the date of the sending out, which here was 31 July. As for the 3 days off work, it leaves 39 days of the 42 wholly unexplained and in any event "off work" does not of itself, even if medically substantiated, which this was not, indicate an inability to compose and send off a Notice of Appeal, specially one of the home made kind that here eventually emerged.

[8]On 4 October 2000 Miss Delaney asked for an extension of time for the lodging of the Notice of Appeal. She said:

"I feel it would be fair to grant me an extension due to the fact that Mr Russell's decision was both biased and discriminatory, and which upset me greatly causing me to take 3 days leave from work due to the nasty nature of his comments calling me unreliable and implying that I was lying although all my evidence was clearly documented. I also had to wait for the new evidence to be documented from Reading. Also, my boyfriend was admitted to the local Stepping Hill hospital for a period of a week which also prevented me from completing the document sooner, as I had to visit daily. I myself am suffering presently from ill health, so I feel that all in all, for you to permit simply one day extension would be only be fair and reasonable, due to the upset and distress Mr Russell's unfair comments have caused me."

[9]In the ordinary course as the Employment Appeal Tribunal usually does, it asks the Respondent, here Nord Anglia, for their reaction and they sent their reaction by letter on 23 October 2000 from their solicitors, Hammond Suddards & Edge, and they say:

"As to the reasons for the delay set out in the Appellant's letter to the Employment Appeal Tribunal of 4 October 2000, we comment as follows:- Firstly, the Appellant's alleged illness only lasted for three days immediately upon receipt of the Employment Tribunal's reasons for its decision. This left the Applicant with a significant period of time within which still to submit the Appeal. Secondly, the Appellant deliberately chose to delay submitting her Appeal as she wished to wait for "new evidence" to be documented from an Employment Tribunal Hearing held at Reading. It was purely the Appellant's free choice to delay submitting her Appeal and it is incumbent upon her to accept the natural consequences of that delay. There was no need for the Appellant to be in receipt of any Tribunal hearing documents from a separate Tribunal to which she had not been a party before being to Appeal the decision in this case. Thirdly, we do not see how the Appellant having to visit her boyfriend in hospital for a period of a week would have impeded her completion of the Appeal form. Hospital visiting times are in general of only limited duration and all Appellants have other calls upon their time during the forty-two day Appeal period. Fourthly, the Appellant indicates that she is presently suffering from ill health. However, we have seen no evidence of this. Further, we assume that the Appellant was fit enough to attend work for the balance of the forty-two day appeal period not taken up with the three days which she has specifically mentioned. Any ill health suffered by the Appellant after the forty-two day deadline is, we submit, irrelevant to a consideration of extending any deadline to Appeal."

[10]A powerful case was made against any extension of time. That, as I said, was 23 October. On 6 November Miss Delaney put in a final submission in writing, adding, as it seems to me, no new ground for an extension of time, nor, indeed, strengthening the grounds that she had already advanced.

[11]On 10 November the Registrar made an Order and the material part read as follows: "AND UPON due consideration of the Judgment given in UNITED ARAB EMIRATES AND(1) MR ABDEL GHAFAR

(2) DR A K ABBAS IT IS CONSIDERED that there has been shown no exceptional or acceptable reason why the Notice of Appeal could not have been presented within the time limit laid down AND IT IS ORDERED that the application for an extension of time in which to present the Notice of Appeal is refused That was 10 November 2000.

[12]On 14 November Miss Delaney appealed against that Order saying, amongst other things:

"It seems to have gone against me that I faxed the EAT as you advised, when I telephoned the EAT offices, to find out when the time limit was. I find this astonishing in this day and age that no one seems concerned that justice is done, and is seen to be done."

That was addressed to Julia Johnson, the Deputy Registrar.

[13]On 2 July by way, perhaps, of a skeleton argument - it is actually headed "Outline of Reasons why I should be granted 1 day extension of time (Skeleton Argument)" - Miss Delaney sent in 2 pages of writing. Over those 2 pages she adds some references to ill health but nothing substantiates allegation in relation to her own health, the 3-day period of sickness and, in any event, as I have already mentioned, that leaves 39 days unexplained. So far as concerned the illness of the boyfriend she says:

"My boyfriend was ill and was admitted to Stepping Hill Hospital, during the period prior to sending my application of appeal in. I also spent at least 2 nights with him in accident and emergency at this time, whilst trying to do my job and fight these cases."

That hardly suffices to explain delay over the 42-day period. It could not, surely, be urged that even a home made Notice of Appeal of a simple character such as that which was eventually received could not have been produced over the 42 days or was materially delayed by reason of the boyfriend's illness.

[14]Then comes a rather odd further explanation. It says this:

"I did ring the EAT on the Monday to find out how when it was due to be submitted. Nobody phoned back until the Tuesday and said it was due in that day, which by my calculations was wrong. I was aware of the 42 day deadline, and couldn't believe they were saying I'd missed it. On the Wednesday I phoned and spoke to Julia Johnson, who told me to try and get something in on Wednesday. She did not say I had until midnight, if she had I'd have gone home and got the form, I assumed it had to be in by end of working day, obviously my error. I faxed my intention to appeal on the Wednesday, and the actual form on the Thursday. Therefore the mix-up caused me to be a day late, with the form actually being in your hands, I think it was actually less than 24 hours late, possibly 12 hours late."

All of that is typed then she writes in handwriting "(My recollection.)":

[15]It will be remembered that she had thought the time ran from her receipt of the decision rather than its sending out. The Monday, in the expression "I did ring the EAT on the Monday" would seem to be a reference to Monday, 11 September, the very last of the 42 days but, on that basis, the explanation does not make sense. To say that she faxed on the Wednesday would put her even further out of time than it would seem that she was. She does end up saying "(My recollection)" and I fear that her recollection is inaccurate. She would have received the note sent out with the Employment Tribunal decisions; indeed, in this case, because of the earlier procedural case, she would have received them twice. They explained how to appeal and by when to appeal and to whom to appeal and even give the Employment Appeal Tribunal's address and it has to be borne in mind that the period of 42 days is by the standard of most period specified for appeals a generous period.

[16]Miscalculation, in other words, taking time to run from receipt rather than from sending out, is not an acceptable reason for delay and there has been no other reason that has been adequately substantiated. Mr Rose reminds me of the guidance given in the AbdelGhafar case which the Registrar recited she had in mind. It is referred to in her Order and he referred me also to the Aziz v Bethnal Green case, where, in the Court of Appeal, the argument was raised that the Employment Appeal Tribunal was far stricter with Appeals to the Employment Appeal Tribunal than was the Court of Appeal in relation to Appeals to the Court of Appeal and the strict procedure of the Employment Appeal Tribunal was to that extent put in issue. But in the Aziz case the Court of Appeal did nothing to discourage the relatively strict line that is habitually taken at the Employment Appeal Tribunal. Even where there is short delay, a good reason has to be provided for exceptional relief and the granting of time is exceptional relief.

[17]However, I indicated earlier that I would need to come back to the subject of a telephone call between Miss Delaney and the Employment Appeal Tribunal which seems to have occurred in the interval between the sending out of the Employment Tribunal's decision and the expiry of the 42 days on 11 September. Well after the expiry of that period, on 17 November, the Deputy Registrar wrote to Miss Delaney a paragraph that said this:

"I clearly recall our telephone conversation during which I informed you of the 42 day time limit within which to enter a Notice of Appeal. I further informed you that in accordance with paragraph 3(3) of the Practice Direction that an extension of time cannot be considered until a Notice of Appeal has been lodged. I suggested that you might wish to consider lodging your Notice of Appeal within the prescribed time limits and applying for leave to amend at a later stage if you considered it necessary. I also explained that you could fax your Notice of Appeal to this office and it would be treated as in time if received by midnight on the 42 nd day. Our telephone conversation left me with the impression that the information had been understood. I am sorry if this has proved not to be the case."

[18]The language of that letter is consistent only with the phone call to which it relates occurring before the expiry of the 42-day period. Unfortunately though, the advice that was given then was, strictly speaking, wrong. There is no good reason why an extension of time should not be applied for, and, if appropriate, granted, before a Notice of Appeal has been lodged. Although the Practice Direction says as the letter suggests, the rules make no such provision and it is the rules which have to prevail. Rule 37 expressly enables an application for any extension of time to be made before the expiry of the appointed period and Rule 37(3) shows that that includes the institution of appeals and extension of time in that regard.

[19]The tone of the letter suggests that Miss Delaney had been indicating that she was considering or would apply for an extension of time without waiting the expiry of the 42 days and the tone of the letter also suggests that the telephone conversation would have dissuaded her from doing that.

[20]I fear that I cannot ignore the possibility that, but for the Employment Appeal Tribunal's advice, Miss Delaney would have applied for an extension of time before the expiry on 11 September. She may, had she asserted her or her boyfriend's illness or the need as she saw it to get papers from the Reading Tribunal, have received an extension. Alternatively, it could have been made clear to her that she should be disabused of her view that time ran from receipt rather than from sending out. And it is of course possible that if she was so disabused she might have put in a Notice of Appeal within the period concerned.

[21]It is quite true, as Mr Rose emphasises in argument, that the Deputy Registrar's letter of 17 November itself emphasises that an Appeal had to be lodged by midnight on the 42 nd day. I revert to the expression "I also explained that you could fax your Notice of Appeal to this office and it would be treated as in time if received by midnight on the 42 nd day."

[22]Given the paucity of good explanation (in the sense that the matters originally relied upon were the illness of herself and of her boyfriend and the miscalculation of time, neither of which is a good reason, nor are they good reason taken cumulatively) it is tempting to dismiss this Appeal and also tempting again, as Mr Rose emphasises, to look to the underlying merits of the Appeal. The underlying merits can occasionally be given some weight in this kind of case but only when they are truly clear because otherwise one will get into a position in which one was in effect hearing the Notice of Appeal to determine whether the Appeal should be heard. If, on a preliminary view, one can see at a glance that the Notice of Appeal is hopeless, well then, it would be pointless letting it go forward. To that extent it is indeed tempting to dismiss the matter at this stage because the grounds (which I have not amplified but which I have read) which Miss Delaney wishes to advance on the Appeal, if there is to be an Appeal, seem chiefly concerned, perhaps even exclusively concerned, with the facts of the case rather than identifying any error of law. In particular she seems concerned about witnesses having been believed when deposing against her and about her own evidence being treated otherwise.

[23]However, it does seem that had Miss Delaney not been given wrong advice on the telephone conversation which is recorded in the Deputy Registrar's letter it could be that she would either, as I say, have been granted an extension of time or would have been adequately disabused of her view that time ran from receipt and could then have lodged her home made Notice of Appeal in time.

[24]I have to reflect that there is a possibility that she was misled by the Employment Appeal Tribunal itself. I also need to bear in mind that the Appeal was only 1 day out and that no prejudice other than the inevitable one has been alluded to by Nord Anglia.

[25]On balance, I decide that I shall allow the Appeal against the Registrar's Order. I will set aside the refusal to extend time and extend time to 13 September, thus validating the Notice of Appeal, which bears date the 10 September but was actually received on 12 September and that Notice of Appeal therefore goes forward to a preliminary hearing.

[26]If Mr Rose is right (and he may well be, and it is certainly no part of my present judgment that he is wrong) in saying that the grounds advanced by Miss Delaney in her Notice of Appeal are doomed to fail as being directed only at fact and identifying no error of law, then it will be some comfort to Nord Anglia that if that is the case at the Preliminary Hearing the likelihood will be that the Notice of Appeal will be permitted to go no further forward. Moreover, since the Preliminary Hearing is Ex-Parte, that that result would be achieved without Nord Anglia being put to further expense. So that is some comfort, perhaps, to Nord Anglia, but, reverting to the present Appeal, I do see the possibility of error in the advice given by the Employment Appeal Tribunal itself is a distinguishing feature and has led me to allow the Appeal in the manner I have indicated.