MR BOWDEN v SIGNET GROUP PLC [2001] UKEAT 1509_00_0205

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1509_00_0205

Case No Potential Appeal No. PA/1509/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR BOWDENAPPELLANT

SIGNET GROUP PLCRESPONDENT

Before

Mr Justice Lindsay

Date 2 May 2001

[1]APPEARANCES For the Appellant MR BOWDEN (The Appellant in Person) For the Respondent MS JANE BULLEN (Solicitor) Messrs Theodore Goddard Solicitors 150 Aldersgate Street London EC1A 4EJ MR JUSTICE LINDSAY (PRESIDENT) This is an appeal which is between Mr Bowden and Signet Group plc. Mr Bowden appeals against the Registrar's refusal to extend time for the lodging of an appeal by Mr Bowden. Mr Bowden this morning is before me in person and Signet Group plc appear by Ms Bullen of Theodore Goddard, Signet's solicitors.

[2]The chronology needs to be borne in mind. On 12 December 1996, Mr Bowden lodged an IT1 for constructive dismissal. It was given a number which ends 62/96. At that time Mr Bowden was still in Signet's employ, a point which the Employment Tribunal itself took, in a prompt answer of 13 December 1996. Mr Bowden was asked by the Employment Tribunal whether he accepted that his complaint was premature. On 30 December 1996, Signet put in its IT3 and, amongst other assertions, asserted that there could be no constructive dismissal as there had been no dismissal at all as Mr Bowden was still working for the company.

[3]On 6 March 1997, as Signet later alleged, Mr Bowden was on that day dismissed from employment by Signet for gross misconduct. Signet alleged that he had been working for a competitor whilst on sick leave. On 10 March 1997, there was a pre-hearing review at the Employment Tribunal, Middlesborough; it was treated, in effect, as a directions hearing. What has been described as a 'costs warning' was given, as, so to speak, a shot against Mr Bowden's bow. It was not that a formal order was made that a deposit had to be made by Mr Bowden but a technique was used, which is not unknown in the Tribunals, namely, that the Chairman gave a warning that the Applicant, were he to proceed, might find that he was required later to pay costs to the other side. That warning was given orally, but again, as is not uncommon, a note was put in a sealed envelope to go forward with the papers so that if the case did proceed and if the later Tribunal hearing it determined that costs were an issue, they would be in a position to open the envelope and to recognise and to indicate to Mr Bowden that he had, after all, been warned orally at an earlier stage. That was the position on 10 March 1997.

[4]On 27 March 1997, Mr Bowden launched a second IT1, which was given a number ending 87/97, complaining of his dismissal by a date which was given as either 31 December 1996 or, alternatively, 6 March 1997. In either case, of course, the IT1 was now an IT1 that was after the date of a claimed dismissal, whereas the IT1 62/96 was in the strange position that it was asserting dismissal when the Applicant was still in the employ of the company concerned.

[5]On a date which is not entirely clear in the papers - it is either 28 October 1997 or 3 November 1997 - both cases, 62/96 and 87/97, were dismissed on withdrawal by the Applicant. An order was made for dismissal, an order made by the Employment Tribunal, the cases, as the Employment Tribunal understood it, having been withdrawn by the Applicant.

[6]On 28 January 1998, a third IT1 was issued by Mr Bowden, given a number ending 93/98. On 16 June 1998, a decision was sent to the parties in that third case, 93/98, and Mr Bowden's claim was dismissed on withdrawal. It seems that there had been what is called a COT3 settlement with the assistance of ACAS. It had been brokered by ACAS. It may well be that later the terms of that agreement brokered by ACAS were not honoured or honoured in time by Signet, because Mr Bowden later took proceedings in the County Court and, as I understand it, recovered money on that account, but that is not a matter of immediate concern. What is significant is that by the 11 June 1998 all three IT1's launched by Mr Bowden had been dismissed on having been withdrawn by him.

[7]On 21 November 1999 - so one sees a long gap between that and the next immediately preceding step - Mr Bowden indicated to the Employment Tribunal that he wished to complain about the procedures which the Employment Tribunal had earlier adopted. He wished, he said, to revive the two earlier Employment Tribunal cases. On 21 January 2000, the Employment Tribunal told him that his earlier cases had been dismissed on withdrawal and that the files relative to the cases had been destroyed. On 26 January, Mr Bowden complained again to the Employment Tribunal, this time including a complaint as to the destruction of the files. There were a number of letters passing and ultimately on 10 March 2000, the Regional Chairman, Mr David Reed, elected to treat Mr Bowden's correspondence as a request by Mr Bowden for a review of the decisions in 62/96, 87/97 and 93/98. He said:

"In all of these circumstances I gave careful consideration to the decisions described at paragraphs 1 and 2 above and to all the letters written by Mr Bowden and referred to in this decision. I mean his letters of the 21 November 1999, 26 January and 16 February 2000. It appeared to me appropriate and I decided to treat the letters as an application to review the decisions described in paragraphs 1 and 2 above."

He continued in his paragraphs 11 and 12:

"11 When I decided to treat Mr Bowden's letters as an application for a review I had to and did extend time for the making of such an application. 12 It appeared to me and I decided that the application has no reasonable prospect of success. Accordingly, and as shown above, I refuse the application. [He continued, making points as to time] (a) In respect of the decision relating to cases numbers 2501762/96 and 25012887/97 more than two years have elapsed since it was entered in the register. (b) In respect of the decision relating to case numbered 2500393/98 more than one year has elapsed since it was entered in the register. (c) It appears that Mr Bowden has successfully taken proceedings in a civil court in relation to the settlement described in the decision in case numbered 2500393/98. (d) None of the grounds on which a Tribunal may review a decision exists in any of the cases. The actual decision which was at the head of his paper of 10 March 2000 was this: "

Pursuant to the power given by Rule 11(5) of the Rules of Procedure in Schedule One to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 as amended I refuse the application for review of the decisions entered in the register on 3 November 1997 [Cases numbered 2501762/96 and 2501287/1997] and on 11 June 1998 [Case numbered 2500393/98] as I am satisfied that it have no reasonable prospect of success." That decision was sent to the parties, and thus to the Appellant, which is perhaps more relevant, on 10 March 2000. The 42 days for a Notice of Appeal to be lodged, if there was to be an appeal against that decision, expired therefore on 21 April 2000. However, no Notice of Appeal was received by the Employment Appeal Tribunal until 29 November 2000; it actually bears the date 27 November but seems to have been received on 29 November. The Notice of Appeal claims to be against the decision by Mr David Reed on his application for review. The first complaint in the Notice of Appeal is that there had been no application by Mr Bowden for a review. The two other grounds are these, "2/ In the original case 2501762/96 the Tribunal had failed to establish its jurisdiction 3/ Fuller details in accompanying correspondence which is offered also in mitigation for the delay in appeal."

[8]On 1 December 2000, the Employment Appeal Tribunal wrote to tell Mr Bowden that his Notice of Appeal was 222 days out of time; they asked whether he wished to apply for an extension of time, and if he did, to give his reasons why there should be an extension of time. On 7 December 2000, Mr Bowden reiterated that there had been no application for a review. Alternatively, he asked for an extension of time in the light of correspondence which he had had, including correspondence with His Honour Judge Prophet, the President of the Employment Tribunals. The Employment Appeal Tribunal then, as is its custom in such matters, sought the views of the relevant Respondent to see whether it would oppose an extension of time. On 20 December 2000, the solicitors to Signet Group made some telling points, nonetheless telling for being obvious; they said in their letter of 20 December 2000:

"1 The Respondent finds the Notice of Appeal from the decision of an application for the review to be wholly illogical. If we may refer you to the Applicant's letter of 7 December 2000, you will note that the Appellant categorically states that it was not his intention to apply for a review, rather, that he wished to make a complaint against the Tribunal and was therefore making a request for information about the necessary procedures involved. We therefore fail to see why, after the application for a review was refused, the Appellant is so aggrieved. Clearly, it was never his intention to seek a review in the first place. 2 We would question the Employment Appeal Tribunal's jurisdiction should the Notice of Appeal be allowed. We respectfully draw your attention to the fact that cases 2501762/1996 and 2501287/1997 were dismissed on withdrawal by the Appellant himself, and that case 2500393/1998 was disposed of by consent, as it was dismissed on withdrawal after the parties agreed to a COT3 settlement. As such, the Employment Tribunal did not make a 'decision' as defined by Regulation 2 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. Please also note that with respect to at least the first two cases the Appellant was receiving professional advice."

On 3 January 2001, Mr Bowden's answer to the observations of the Respondent which had been sent on to him, included this: "Eventually I was to conclude that there was no complaints procedure or access to an appropriate Ombudsman and that the only way forward was to follow the process that Mr Reed had already put in motion. The correspondence with Mr Reed terminated with his letter of 30 th October. I had by that date already commenced my correspondence with the Appeal Tribunal on 11 th October and in a reply received information and leaflets. It is on the basis of this information, and further received on 1 st November, that my present appeal is made. The respondent appears to be suggesting that my acting on the basis of information supplied by the Appeal Tribunal is illogical. Clearly there is no other way for me to proceed.

[9]On 5 January 2001, the Registrar here at the EAT made an order that included this:

"AND UPON FURTHER CONSIDERATION of the facts that the Employment Tribunal's Decision was sent to the parties on 10 March 2000 and advice regarding appealing could have been sought from the Appeal Tribunal soon after that date AND UPON FURTHER CONSIDERATION of 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 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 13 January, Mr Bowden indicated that he wished to appeal against the Registrar's refusal to grant an extension of time, he has, of course, addressed me this morning and also lodged a skeleton argument.

[10]It is, in some respects, a strange document because its chief burden is that the Employment Tribunal had no jurisdiction to decide anything as to a review on 10 March 2000. If, in so asserting, Mr Bowden is right, then there was no effective decision on 10 March 2000. If there was a decision to no effect then an appeal would be pointless. If, alternatively, more strictly, there was no decision at all on 10 March 2000, then there could, of course, be no appeal against it and the Registrar would have been right to refuse an extension of time for a purported appeal which, on Mr Bowden's own argument, would necessarily fail. There would be no point in extending time for an appeal against an order which was either totally without any significant effect or, alternatively, such as could not be regarded as a decision at all. There is no point in extending time for a case which is either pointless or doomed to fail. That would be the position were Mr Bowden to be right in his assertion that there was no jurisdiction to decide anything on 10 March 2000. But, if he is wrong, then he needed to appeal within 42 days of 10 March, but he failed to do so. His only reason for delay would seem to be the persistence of his view that there was no true or effective decision of 10 March and his ignorance of appeal time constraints, but a mistake as to the law of such a kind is no justification for delay in lodging a Notice of Appeal. If he had wished to challenge the decision of 10 March in any way he needed to have lodged a timely Notice of Appeal. There is here no suggestion that he was ever misled to thinking that he could safely delay or that he did not need to appeal. He was not so told either by the Employment Tribunal or by the Employment Appeal Tribunal or, as far as one can tell, by any advisers, which I add because he is in a position in which from time to time he has received legal advice.

[11]The Abdelghafar case, which is referred to in the Registrar's Order, is a familiar case giving guidelines in this area. It illustrates the need in cases such as this for the would-be Appellant seeking an extension of time to make a clear and strong case for his being granted the exceptional relief of an extension of time. A subsequent case, not referred to this morning, but which I have in mind, is Aziz v Bethnall Green; that was a case in which it was complained to the Court of Appeal that the Employment Appeal Tribunal was unduly strict in its application of Abdelghafar and in its general approach to time constraints, but the criticism was not upheld. The view habitually taken by the Employment Appeal Tribunal as to extensions of time was not disapproved.

[12]It is an unusual case. I have heard Mr Bowden set out his argument with moderation and with some skill but have been quite unable to find any good reason to grant the exceptional relief – and it would need to be a very good argument and would be quite exceptional relief, given the long interval and the long delay here in issue – of granting the extension of time which Mr Bowden seeks. I must therefore, having found no such ground, dismiss the appeal against the Registrar's Order of 5 January 2001. Therefore the Notice of Appeal remains defunct.