MR T A KYTE v LONDON FIRE & CIVIL DEFENCE AUTHORITY [2001] UKEAT 1239_00_1203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1239_00_1203Case No Appeal No. PA/1239/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T A KYTEAPPELLANTLONDON FIRE & CIVIL DEFENCE AUTHORITYRESPONDENT
Before
Mr Justice LindsayDate 12 March 2001
[1]APPEARANCES For the Appellants MISS MARTHA MONDAY of Counsel Instructed by Messrs Max Barford & Co Solicitors 16 Mount Pleasant Road Tunbridge Wells Kent TN1 1QU For the Respondent MR DANIEL STILITZ of Counsel London Fire & Civil Defence Authority Legal Services Dept Room 611 Main Building Fire Brigade headquarters 8 Albert Embankment London SE1 7SD THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) I have before me the appeal of Mr T A Kyte in the matter Kyte v London Fire & Civil Defence Authority. This morning Miss Monday has appeared for Mr Kyte and Mr Stilitz for London Fire & Civil Defence Authority. The chronology of the matter, which concerns an appeal by Mr Kyte against the Registrar's refusal to extend time for the lodging of a Notice of Appeal, is as follows. On 14 March of last year, Mr Kyte presented an IT1 for racial discrimination. He said that he had been employed from 1984 by London Fire and was still employed by that authority. He said he had been suspended for the alleged making of a racist remark. He denied making the remark, and in any event he said that he, a white officer, was treated less favourably than had been a black officer who, he said, had made a racist remark and had been treated not as unfavourably as had Mr Kyte.[2]On 5 April the Fire Service put in its IT3; they said that Mr Kyte had been found guilty of the racist remark after an enquiry and had been treated exactly as would any other employee who had been found guilty of such an offence. So far the dates of complaint and of the events complained of have not largely been brought forward but at the hearing on 3 August 2000 before the Employment Tribunal the question was, as a preliminary issue, whether the complaint made by Mr Kyte on 14 March was out of time. On 10 August of last year the decision of that Tribunal was sent to the parties; it was the decision of the Tribunal under the chairmanship of Mrs T J Mason. It had been a full Tribunal of three members, and the unanimous decision of the Tribunal was that:
"It does not have a jurisdiction to entertain this complaint of race discrimination because it has been made out of time and that being so this originating application is dismissed"
. That was sent to the parties on 10 August, as I mentioned.[3]On 18 September - one sees that as a date on a purported Notice of Appeal which was sent by fax to the respondent, London Fire & Civil Defence Authority as also it was addressed to the Employment Tribunal – not, one notes, to the Employment Appeal Tribunal but to the Employment Tribunal. A purported Notice of Appeal was thus sent. On 20 September Mr Kyte's solicitors rang the Employment Tribunal and the Employment Tribunal confirmed that it had received the document. On 21 September the 42 day period expired. At some date, - although which it is not precisely clear - the Employment Tribunal had, off their own bat, so to speak, decided to send the Notice of Appeal which they had received on to the Employment Appeal Tribunal and it was received by the Employment Appeal Tribunal on 25 September, that was, in other words 4 days out of time. The Employment Appeal Tribunal indicated to Mr Kyte's solicitors that they had received it and invited a consideration of whether Mr Kyte's solicitors and Mr Kyte wanted to apply for an extension of time for the lodging of that Notice of Appeal.[4]On 2 October Mr Kyte's solicitors indicated that they did, indeed, apply for an extension of time. They said that unfortunately, due to an administrative error, the Notice of Appeal had been sent by mistake by fax and post to the Employment Tribunal at 19-29 Woburn Place on Monday 18 September rather than to the Employment Appeal Tribunal. On 3 October the Fire Service indicated that they would oppose any extension. There were then further submissions from the Appellant on 12 October, and on 16 October the Registrar made an order, part of which reads as follows:
"And upon further consideration of the judgement given in the United Arab Emirates v Abdelghafar 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 and it is ordered that the application for an extension of time in which to present the Notice of Appeal is refused. 16 October 2000."
On the same day Mr Kyte's solicitors drew attention to the Queen's Bench case of The Commissioners of Customs and Excise v Eastwood Care Homes (18.01.00) QBD and Miss Monday has furnished a copy of that for this morning. On 20 October Mr Kyte's solicitors indicated that they wished to appeal against the Registrar's decision declining an extension of time, and I have had extensive argument from both sides this morning, both from Miss Monday and from Mr Stilitz. A skeleton argument on behalf of each has been sent to me and considered.[5]Where does it leave us? Nowadays every Employment Tribunal decision is accompanied by a booklet or a few sheets of paper which indicate to whom any appeal is to be made, if an appeal is intended, and signifying the period within which the appeal has to be made. It is a relatively generous period, 42 days from the sending to the parties of the decision. The name and address of the Employment Appeal Tribunal is given and this makes it particularly difficult for a party to seek to explain delay by having sent the Notice of Appeal to someone other than the Employment Appeal Tribunal, which is identified as the person to whom an appeal is to be made and whose address is given. It is quite wrong in my view, on the Appellant's behalf to be critical of the Employment Tribunal. The Appellant seeks to blame the Employment Tribunal for delay. The Employment Tribunal is quite commonly sent notices of appeal for information only, for example when a review by the Employment Tribunal is pending and the question arises whether it should be accelerated or postponed relative to a possible appeal and again notices of appeal are sent for information only when the remedies hearing is either to be delayed or accelerated, again relative to the hearing of an appeal. It by no means follows that any Notice of Appeal which the Employment Tribunal receives can be seen to have been sent to it by mistake instead of it being sent to the Employment Appeal Tribunal. Moreover the Employment Tribunal has got quite enough to do with the tasks that it strictly does have to perform for it to be fair to criticise it for tasks for which it is not expected to perform, namely forwarding notices of appeal to the Employment Appeal Tribunal. One does not, it seems to me, justify one's lateness in sending a Notice of Appeal to the right addressee by showing that one had sent it in timely fashion to a wrong one.[6]The Appellant also argues that the Employment Tribunal accepted service on 20 September as good service on the Employment Appeal Tribunal. This is a novel proposition. The Employment Tribunal has no authority to accept service on behalf of the Employment Appeal Tribunal and so far as one can see it was not asked to do so and did not purport to do so. It is not an argument to which any weight can be attached. It has long since been made plain in the reported authorities that to send a Notice of Appeal to the Employment Tribunal is not to effect service on the Employment Appeal Tribunal and that, in broad terms, service on the Employment Tribunal furnishes no good excuse for lateness, nor justifies an extension of time, see Duke v Prospect Training [1989] IRLR 196 and Martin v British Rail [1989] ICR 24. Neither of those cases comes out with such propositions with crystal clarity but they are frequently cited and relied upon towards that general end.[7]Miss Monday draws attention to the view of other courts to extensions of time and lateness. A distinction between the approach of the Employment Appeal Tribunal and other courts and tribunals as to lateness is quite frequently pointed out, but the Employment Appeal Tribunal is, of course, dealing with an appeal , where, very frequently, there has been already a full determination on the merits. Anyone can see that where that is the case a stricter line is justified by the Appellant body in requiring compliance with time limits. This case, in a way, is something of a hybrid in that the hearing below did hear oral evidence, albeit on a jurisdictional issue, so to some extent therefore, the position is that Mr Kyte has had his day in court, or something or if, but, unfortunately for him, he did create a poor impression. The Tribunal says, speaking of Mr Kyte and, a witness, Mr Byrne: It is with regret that we conclude that both his evidence [that is, Mr Byrne's] and that of Mr Kyte was self serving and untruthful about the date." The date of a conversation was a particular factor that was being there considered. Also, in their concluding words, the Tribunal below said:
"…… It gives us no pleasure to record this, he [that is, Mr Kyte] has tried to mislead us."
I have in mind that there was no full hearing on the merits below but, of course, there could not be in the sense that all that the court had before it was a question as to jurisdiction but, insofar as there was a hearing, it was with evidence and led to that poor impression which I have mentioned. Mr Stilitz tells me that no appeal against those findings as to untruthfulness is contained in the Notice of Appeal.[8]There is no doubt but that the Employment Appeal Tribunal takes a relatively strict line in cases such as this and in Aziz v Bethnall Green the Court of Appeal had to consider an argument where it was said that the Employment Appeal Tribunal was more strict as to time than was the Court of Appeal with the Court of Appeal's own cases when they were asked to give extensions of time. But the Court of Appeal in Aziz by no means disapproved the relatively strict line habitually taken over a long period by the Employment Appeal Tribunal. So far as concerns the merits of the underlying appeal, it seems to me they are not such as to play any significant role in the question before me or, at all events, no significant role in the Appellant's favour. If anything, given the findings as to Mr Kyte having tried to mislead the Tribunal below and bearing in mind that what the Tribunal below was considering was the justice and equity of an extension of time, one can see that the merits, if they did come into play, would militate rather against the Appellant than in his favour. But I do not see that they really have any significant weight in the issue before me.[9]The lack of prejudice is drawn attention to by Miss Monday but in the familiar case of Abdelghafar there are passages that indicate that the lack of prejudice, certainly on its own, is unlikely to be significant, but here, if anything, it is difficult to conclude that there would be a lack of prejudice. If the appeal were to go ahead at the Employment Appeal Tribunal and if Mr Kyte was to lose it, then it seems to me that there is a real likelihood of the Respondent, London Fire & Civil Defence Authority, being found to be substantially further out of pocket. This is not a jurisdiction in which costs habitually follow the event; on the contrary it is very difficult for a successful respondent to an appeal to obtain an order for costs and, even if the order was obtained, there might or might not - I have no information as to this - be problems about recovery. It is certainly not plain and obvious that there would be no prejudice to London Fire & Civil Defence Authority were the appeal to be allowed to go forward. Miss Monday, as I mentioned, has drawn my attention to the case of Commissioners of Custom & Excise v Eastwood Care Homes , but that case very much depends upon the observation that there had been a fundamental change effected by the Civil Procedure Rules. But the Civil Procedure Rules do not here apply and the Employment Appeal Tribunal rules have not changed fundamentally or at all, presumably because the legislature is happy enough with the practice of the Employment Appeal Tribunal relative to its current rules, happy enough not to require fundamental or other change, at any rate for the time being. I bear in mind, as Miss Monday invites me to, that in Abdelghafar Mr Justice Mummery points out that the Employment Tribunal is but part of a more comprehensive overall system of courts and tribunals and that one body of courts and tribunals can learn from the others and from their practices, which, of course, is the case. But there has been no fundamental change that mirrors the change which Mr Justice Lightman observed in the Eastwood Care Homes and accordingly I have no ground provided by that case to switch to some different practice. Miss Monday argues that there is inconsistency between this case and another case which Mr Kyte has against a different respondent. Mr Stilitz points out that in that other case there are different parties, that the respondent is not an employer but a trade union, that the facts are not identical and that there has not in that other case been the very adverse findings as to credibility which we have in this case.[10]When something as broad as the justice and equity of an extension of time in which to lodge an IT1 is in play, it seems not improbable that different tribunals will, on different evidence, come to different conclusions. That is not necessarily any unmeritorious form of inconsistency but simply a reflection of the differences in the cases and I do not feel able to attach any weight to the argument as to inconsistency. In Miss Monday's skeleton she summarises the Abdelghafar case, which gives guidelines in this area, by saying that the Employment Appeal Tribunal must ask what is the explanation for the default, does it provide a good excuse for the default and are there circumstances which justify the Employment Appeal Tribunal taking the exceptional step of granting an extension of time? Mr Stilitz cites, from the Abdelghafar case, that the 42 day time limit will:
"only be relaxed in rare and exceptional cases where the Tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the rules."
The explanation for the default is, as we have seen, that the Notice of Appeal was sent to the wrong addressee. Does it provide a good excuse for the default? Given the clarity with which the associated literature indicates where the appeal should go if there is to be an appeal, in my view it does not, and I have to bear in mind, too, that this is not some unassisted rustic who is the Appellant but a man who has solicitors acting for him. Are there any circumstances which justify the Employment Appeal Tribunal taking the exceptional step of granting an extension of time? I have been through, I hope, the principal arguments addressed to me; they do not seem to me to furnish material to justify the exceptional step of granting an extension of time and accordingly, exercising afresh the discretion which exists in such matters, I decide that there shall be no extension of time and dismiss the appeal.