DR A M ZALZALA v THE UNIVERSITY OF SHEFFIELD [2001] UKEAT 1419_00_2007

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1419_00_2007

Case No Appeal No. PA/1419/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR A M ZALZALAAPPELLANT

THE UNIVERSITY OF SHEFFIELDRESPONDENT

Before

Mr Justice Lindsay

Date 20 July 2001

[1]APPEARANCES For the Appellant The Appellant in person For the Respondent No appearance or representation by or on behalf of the Respondent MR JUSTICE LINDSAY (PRESIDENT) I have before me an appeal by Dr A M S Zalzala in the matter Zalzala v The University of Sheffield . Dr Zalzala is here in person today and he is appealing against the Registrar's declining to extend time for the lodging of a Notice of Appeal.

[2]There are a number of other Zalzala cases, if I might call them that, that are listed for hearing this afternoon, and a first question I have had to address is whether it would be appropriate to hear this matter on its own as a separate entity, or only as part of the grander picture that emerges from all the other appeals taken together.

[3]It seems to me that this matter is in a separate case from the other Notices of Appeal because here the complaint is not about conduct of or a decision by the Employment Tribunal, but is about a Decision of the Employment Appeal Tribunal, namely the Registrar's declining to extend time. It seems to me a discrete entity that can properly be dealt with on its own.

[4]At a procedural level it is also desirable that it should be heard separately because such matters as this are heard by the President in Chambers, whereas most of the other matters will be heard by the full Employment Appeal Tribunal panel of three, and so I have indicated to Dr Zalzala that I rule that it should be dealt with separately.

[5]The story begins with a letter from the Employment Tribunal of 12 September to Dr Zalzala. It is from the Chairman, represented by the Regional Secretary's secretary. It says:

"The Chairman notes that you propose to seek a review of the decision made on 4 September 2000. The Chairman intends to promulgate the decision after the costs hearing on 19 September 2000, thus there will be one decision relating to both hearings. The Chairman notes your assertion that the Respondent has made no application for costs to date. Your assertion is incorrect, Miss Tether did make an application for costs at the hearing on 4 September 2000 and this application will be heard on 19 September 2000. This date was convenient to the Tribunal and to the Respondent. You did not indicate that the date was inconvenient to yourself. The Chairman is not prepared to postpone the hearing listed for 19 September 2000 pending your proposed application for review, accordingly the hearing will go ahead on that date."

[6]Taking that to be a decision which sets forty two days running, the forty two day period within which a Notice of Appeal might be lodged expired on 24 October. Nothing by then had been heard by way of a Notice of Appeal from Dr Zalzala, but on 9 November a Notice of Appeal was received. What it says, so far as is relevant to the letter of 12 September is:

"The Appellant appeals from………. False statements in letter by a chairman, Mr Russell, dated 12 September 2000"

That is, I think, the only reference to the letter of 12 September being appealed against. So it is not in terms framed as a Notice of Appeal against the Decision, but against false statements therein.

[7]On 14 February of this year, Dr Zalzala asked for an extension of time because he said he had suffered from illness and extreme workload. He wrote to the EAT on that day, 14 February, saying:

"I refer to your letters dated 10 January 2001 and 31 January 2001, and apologise for the late response because of illness and extreme workload."

On 20 February the Respondent's solicitors opposed any extension of time being given to Dr Zalzala. They say in their letter:

"Dr Zalzala gives no reason for the Notice of Appeal being lodged out of time and it is our submission that the fact that the Appellant states that the appeal relates to other appeals presented by himself is an insufficient reason for the EAT to exercise its discretion to extend the time limit. The Appellant is, despite being an unrepresented party, well aware of the time limit for lodging an appeal and the importance of submitting an appeal in time given that he currently has several appeals before the EAT, including an appeal (your reference PA/342/00) which is an appeal against a Registrar's Order refusing an extension of time to appeal. We would also refer you to the case of United Arab Emirates v Abdelghafar where it is clear that the EAT should only exercise its discretion to extend the time limit in "rare and exceptional cases"

. We would submit on behalf of the Respondent that this is not such a case. For the above reasons we submit that the Appellant should not be given leave to pursue this appeal."

[8]On 16 March Dr Zalzala wrote to the EAT saying:

"The appellant is claiming dishonourable conduct, bias and corruption within the judicial system involving a number of chairmen and lay members and extending over around two years. The case of UAE vs Abdelghafar refers to "rare and exceptional circumstances"

. Unless the above is common practice in daily Employment Tribunal practice then this case is rare and exceptional and EAT must be given the opportunity to make its own mind about this matter." The matter came before the Registrar to rule whether time should be extended or not, and that was dealt with on 27 March, where the latter part of the Order says:

"AND UPON FURTHER CONSIDERATION and the judgment given in UNITED ARAB EMIRATES 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 unrepresented party, for the ignorance of time limits. "

IT IS CONSIDERED that there has been 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."

[9]On 20 March of this year the Employment Appeal Tribunal indicated that Dr Zalzala's appeal against the Registrar's refusal of 27 March would be listed to come on with a number of other appeals and hence it comes on today.

[10]Assuming that the letter of 12 September is capable of being appealed against (and certainly, as to the last passage about the Chairman not being prepared to postpone the hearing, that would seem to be an acceptable assumption) the time, as I mentioned, expired on 24 October and no reason has been given for delay, either orally (or I will come on to one point) in writing, save for the grounds mentioned in the letter of 14 February of this year - illness and extreme workload. I am not sure at all that the illness and extreme workload there referred to in the letter of 14 February were meant to refer back to the period from 12 September to 24 October 2000, but those seem to be the only grounds that have been asserted, save for one I shall come on to.

[11]Now neither illness nor extreme workload has been substantiated in evidence properly so-called. There is nothing, for example, by way of a statement from a doctor, or indeed anything, strictly speaking, relevant to the point from Dr Zalzala. Moreover, Dr Zalzala had plainly been able to conduct a vigorous correspondence throughout the period between 12 September 2000 and 24 October 2000 and thereabouts, as one can readily see from the papers lodged in relation to the other appeals. For example, there are in the bundles, letters of 10 September, 12 September, 14 September, 7 October, 16 October, and 19 October, 25 October, 2 November and 6 November. If, as was plainly the case, Dr Zalzala was able to write letters of some magnitude within the period, well then, he surely would have been able to prepare a Notice of Appeal, a task that, in many respects, would be far less extensive than the writing of those various letters, most or all of which were not letters that needed necessarily to be written within a prescribed deadline.

[12]So illness is not substantiated, but rather denied by the surrounding circumstances, and, as for workload, it would seem that a choice must have been made to write those letters rather than to frame and lodge the Notice of Appeal. Dr Zalzala says that it was really because he was waiting in order to have further information to be able to present a comprehensive and larger picture of the matters of which he was complaining, that the Notice of Appeal was delayed. He says, quite rightly, that to lodge a Notice of Appeal without having thorough grounds for it is simply a waste of time and possibly money, and that consequently he was waiting for the bigger picture, so to speak, to build up before lodging a Notice of Appeal. But that, as it seems to me, is no good reason for not lodging a Notice of Appeal in this particular and rather limited aspect of the case, simply appealing against the contents of the letter of 12 September 2000.

[13]Whether the Chairman was correct in his assertion, for example, that Miss Tether did make an application for costs is not a matter that can be appealed against. One can only appeal against Decisions and it seems to me that the only Decision in that letter that is at all likely to be arguably capable of a Notice of Appeal is the last few lines indicating that the Chairman was not prepared to postpone the hearing and that, as it seems to me, is a matter that is sufficiently discrete to have been capable of being the subject of a separate Notice of Appeal in good time within the forty two days after 12 September.

[14]Accordingly, I move to the guidelines in the Abdelghafar case, which I have in mind, and I also have in mind the guidance given by the Court of Appeal in Aziz v Bethnal Green . In that case there was some attempt to criticise the relatively strict approach taken by the Employment Appeal Tribunal in relation to extensions of time, but the attempt failed and nothing in the Decision of the Court of Appeal disapproves the relatively strict line habitually taken by the Employment Appeal Tribunal as to extensions of time. Bearing in mind the Abdelghafar guidelines and the non-disapproval of the relatively strict line in Aziz v Bethnal Green , it seems to me that I cannot regard this as a case in which I have been shown any good grounds for the exceptional relief of granting an extension of time, and accordingly I must refuse an extension of time and dismiss this particular appeal.