MR R J GRIFFIN v BUCKINGHAM COUNTY COUNCIL [2001] UKEAT 1415_00_0805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1415_00_0805Case No Potential Appeal No. PA/1415/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R J GRIFFINAPPELLANTBUCKINGHAM COUNTY COUNCILRESPONDENT
Before
Mr Justice LindsayDate 8 May 2001
[1]APPEARANCES For the Appellant MR R J GRIFFIN (The Appellant in Person) For the Respondent MR RICHARD HIGNETT (of Counsel) Buckingham County Council Legal Service County Hall Aylesbury Bucks HP20 1UA MR JUSTICE LINDSAY (PRESIDENT) I have before me an appeal by Mr R J Griffin in the matter Griffin v Buckinghamshire County Council . Mr Griffin appeals against the Registrar's refusal to extend time for the presentation of a Notice of Appeal. Today Mr Griffin has been before me in person and Buckinghamshire County Council, as Respondents, have appeared by Mr Hignett.[2]On 14 October 1999 Mr Griffin lodged an IT1 for unfair selection for redundancy. In fact, at the time he presented his IT1 he was still, I think, employed. On 9 November 1999 Buckinghamshire lodged its IT3 saying that he was or was about to be dismissed for redundancy but had been fairly selected. Between 2 - 4 May 2000, there was a hearing at Reading before the Employment Tribunal. The Tribunal gave summary reasons on 5 May 2000. The Tribunal was under the chairmanship of Mr J G Hollow and the unanimous decision, as sent out with the summary reasons, was that the Applicant was dismissed by way of redundancy, the dismissal was fair and the application failed. Very shortly thereafter, on 8 May, Mr Griffin asked for extended reasons. On 8 June the extended reasons were sent to the parties; the decision, of course, remained as had been announced in the summary reasons. The Tribunal said:
"We are satisfied that there was a reduction in the need for the teaching of general musicianship. We are satisfied that there was a redundancy situation and that the respondent has discharged its obligation under s.98 in this respect. We are satisfied that the applicant was dismissed by reason of that redundancy situation."
A little later, towards the very end of their decision, they say:
"We are satisfied that the respondent undertook extensive consultation with the applicant at which the points he raised were given careful consideration albeit that they were finally rejected. We are satisfied that efforts were made to identify alternative vacancies for the applicant but without success. We find that this was a fair dismissal and the application fails."
It is then signed by the chairman, Mr Hollow, and underneath that it says – "Extended Reasons sent to the parties on:…………………" - and there is a blank. It says also – "The time for appeal runs from this date". The date of 8 June only later emerged as the date at which the extended reasons were sent to the parties and there has not been any dispute that 8 June was, indeed, the date. Nor is it said on behalf of or by Mr Griffin, that the conventional leaflet that is sent out with extended reasons, which explains how to appeal and to whom to appeal and when and to what address the paper should be sent, was not sent out.[3]That, then, is the position as it stood at 8 June. On 18 July Mr Griffin wrote a long letter to the Employment Tribunal - and one has to note it was sent to the Employment Tribunal - to indicate that he wished to challenge the decision. He has told me today, more than once, that he takes that, and took it at the time, to have been an appeal. But, of course, an appeal has to be directed to the Employment Appeal Tribunal and not to the Employment Tribunal. On 4 August the Employment Tribunal declined a review on the ground that the time for a review had elapsed. On 1 September Mr Griffin refers to his having requested a review. He begins his letter to the Regional Secretary at the Employment Tribunal of 1 September by saying:
"Your letters of 4 August and 10 August both state that my request for a review hearing was out of time…."
There was continuing correspondence between Mr Griffin and the Employment Tribunal in which he was complaining of the decision and the way it was arrived at. In the meantime, on 20 July, the 42 days period limited by reference to 42 days from when the extended reasons were sent out to the parties, expired.[4]On 6 November a document treated by the Employment Appeal Tribunal as being a Notice of Appeal – it was in fact in letter form but was taken by the Employment Appeal Tribunal to be a Notice of Appeal – was received by the Employment Appeal Tribunal. On 21 November 2000 the Employment Appeal Tribunal pointed out to Mr Griffin that, treating that as a Notice of Appeal, it was out of time by some 109 days. He was asked whether he wished to apply for an extension of time and, if so, to give his reasons why the Notice of Appeal had been late. On 22 November Mr Griffin promptly answered, boldly saying, in effect, that as he had not been late with his Notice of Appeal, he could give no reasons for lateness. I am summarising, of course, but that is the drift of his letter of 22 November. On 27 November the Employment Appeal Tribunal told him that applying to the Employment Tribunal for a review did not alter the need for lodging a Notice of Appeal with the Employment Appeal Tribunal within the 42 day period. On the same day, the Employment Appeal Tribunal wrote, as it does in this type of case, to the Respondent asking what was their attitude to an extension of time. On 28 November, Mr Griffin wrote to say that he had not realised that he could, at one and same time, apply for a review to the Employment Tribunal and make an appeal to the Employment Appeal Tribunal. He said:
"I realise now that I should have sent my request and analysis of 18 July direct to the Employment Appeal Tribunal rather than to the Reading Tribunal."
On 1 December Buckinghamshire opposed any extension of time being granted to Mr Griffin. On 12 December Mr Griffin set out his final submissions to the Employment Appeal Tribunal. He therein plainly proceeds on the basis that to challenge the decision by writing about it to the Employment Tribunal could suffice as the institution of an appeal to the Employment Appeal Tribunal.[5]Today, orally, he has accepted that he should have sent the Notice of Appeal here to the EAT rather than there, namely, to the Employment Tribunal, but that he considered that Mr Hollow, the chairman, was alone the person who could answer the questions raised. There was further correspondence after 12 December. On 16 January the Registrar made her order, towards the end of it, it read:
"AND UPON FURTHER CONSIDERATION of the Judgment given in UNITED ARAB EMIRATE AND (1) MR ABDELGHAFAR (2) DR A K ABBAS with special attention paid to 71C "there is no excuse, even in the case of an underrepresented party, for the ignorance of time limits"
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." On 18 January Mr Griffin appealed against the Registrar's order. He said:
"I have pointed out that my original appeal was presented well within the 42-day time limit prescribed: it was simply sent to the original Tribunal instead of the Appeal Tribunal."
He says:
"There never was any ignorance of time limits, so this does not apply. My appeal was sent to the original Tribunal well within the prescribed 42-day time limit."
He says:
"The question of approaching the Appeal Tribunal as well [meaning as well as to the Employment Tribunal] did not seem relevant at the time. As already pointed out to the Appeal Tribunal, I was not aware of the existence of any 1996 Practice Direction, so could not know that it was possible to write to the Appeal Tribunal at the same time as writing to the original Tribunal. I also pointed out that it didn't seem necessary any way to seek advice elsewhere when the answers lie firmly with the Reading Tribunal."
He makes the point that he was not aware of the 1996 EAT Practice Direction. He has taken me at some length to his skeleton argument, a not inconsiderable document, making many many points, which he has been able to ventilate here this morning.[6]A number of points need to be made but, I hope, briefly. Firstly, the merits of the appeal itself play only a relatively small part in the decision whether or not to extend time, because otherwise, as I put it to Mr Griffin, one would need to hear the appeal in order to determine whether the appeal should be heard, which is an illogical position which the Courts seek to avoid. Moreover, any appeal which, as Mr Griffin's does, asserts blatant perjury on the part of the Respondent involved and poor conduct and total confusion on the part of the chairman involved, does not bear the stamp of an appeal plainly destined to succeed. It is obviously - the underlying appeal - one of considerable difficulty, were it permitted to be raised. Amongst the arguments advanced in the long skeleton is a discussion of new points of evidence, points that were not drawn to the Employment Tribunal's attention. But new evidence is only admissible when the very stringent requirements of the test known as Ladd v Marshall are satisfied, and, having looked at the skeleton and having heard Mr Griffin, I have no reason to think that the test would be likely to be satisfied.[7]So much for a broad first point; the second point is that the only reason for delay that Mr Griffin gives is that he had sent the challenge that he intended to raise and which he thought and regarded as an appeal to the Employment Tribunal, rather than to the Employment Appeal Tribunal, as he should have done. A complaint sent to the wrong body is not to be taken as a complaint sent to the right body, namely to the Employment Appeal Tribunal. It has long been established and has been repeated time after time that to lodge papers at the Employment Tribunal as if that was the institution of an appeal represents no good reason for delay in serving papers to the correct body, namely the Employment Appeal Tribunal – see for example, Duke v Prospect Training Services [1989] IRLR 196 – a case which has been followed many many times since.[8]So much for a broad second point; the third is this, that when the Employment Tribunal received Mr Griffin's long letter of 18 July it was not at all unnatural, as it seems to me, for it to have been taken to be a competent application for a review, namely an application to the right body that could make reviews - the Employment Tribunal - rather than an incompetent application by way of an appeal, given that appeals had to be lodged with the Employment Appeal Tribunal. Mr Griffin accuses the Employment Tribunal of deliberate concealment and suppression. Employment Tribunals as a whole have quite enough to do with the tasks that are specifically assigned to them by the legislation. It is no part of their duty to pass on to the Employment Appeal Tribunal papers that might have been intended to be Notices of Appeal but which could have been regarded as being applications for a review to the Employment Tribunal itself. I attach no weight to Mr Griffin's attribution of bad motives to the Employment Tribunal. He was obliged, if he wished to appeal, to lodge his appeal with the Employment Appeal Tribunal within the prescribed time and he did not. In his skeleton he reiterates the point, he says: "My appeal against the Reading Employment Tribunal's decision was not out of time: it was simply delivered to the original Tribunal Office instead of the Appeal Tribunal Office." but that is a total confusion. Unless and until appropriate papers are lodged with the Employment Appeal Tribunal, there is no appeal; there is no Notice of Appeal received by the body that has to receive it, namely the Employment Appeal Tribunal. The timeliness of a Notice of Appeal is adjudged by when it is received by the body entrusted with appeals, namely the Employment Appeal Tribunal. Here it was received 109 days late.[9]I have been able to find no good reason appearing from the papers and from the argument and the correspondence for a grant of the relief which is described in the Abdelghafar case, as exceptional, namely the grant of an extension of time. The Employment Appeal Tribunal habitually adopts a relatively strict attitude towards extensions of time and such a relatively strict attitude was challenged in the Court of Appeal in the case called Aziz v Bethnall Green but the Employment Appeal Tribunal' s practice emerged unscathed. Here, having been able to see no good reason for the grant of the exceptional relief I have described, I must dismiss the appeal against the Registrar's order and accordingly the Notice of Appeal remains defunct.