MR P PANDYA v HEADCOUNT FIELD MARKETING LTD [2001] UKEAT 600_00_2603

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 600_00_2603Case No Appeal No. PA/600/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P PANDYAAPPELLANTHEADCOUNT FIELD MARKETING LTDRESPONDENT
Before
Mr Justice LindsayDate 26 March 2001
[1]APPEARANCES For the Appellant MR P PANDYA IN PERSON MR JUSTICE LINDSAY (PRESIDENT) I have before me an Ex Parte Application by Mr P Pandya for a re opening of the decision of Mr Justice Charles given on 30 October 2000 dismissing Mr Pandya's appeal against the Registrar's refusal to extend time for a Notice of Appeal that was otherwise out of time. Today Mr Pandya has appeared before me in person.[2]There is quite an extensive chronology and it begins on 13 December 1999 when Mr Pandya lodged a rather strangely framed IT1 against a number of Respondents. The relevant Respondent has transpired, for immediate purposes, to be Headcount Field Marketing Ltd but there were a number of Respondents to that IT1 of 13 December and under the Box 1, where a complainant is expected to specify the nature of his complaint, Mr Pandya wrote this:
"WHETHER POWERGEN'S RECRUITMENT AND TRAINING POLICY/IES IS/ARE LEGALLY BINDING, AND IT HAS CONSPIRED TO KEEP ME OUT OF EMPLOYMENT AS MAY NATWEST BANK, HEADCOUNT, SELECT MANPOWER, KELLY AND OTHER EMPLOYERS HAVE DONE."
[3]There were seven respondents of which the seventh was simply named as "others". But, as I have mentioned, Headcount was one of them. No clear claim was mentioned as being advanced under any particular Act of Parliament and it was unclear whether there was a claim made under the Employment Rights Act or for racial discrimination or sex discrimination or whatever else it might have been.[4]On 14 December, (although this is unseen it is referred to in the papers) a letter was written to Mr Pandya from the Employment Tribunal requiring him to furnish more detail. Mr Pandya responded; having seen the response still it seems to me that the basis of his claim was left unclear.[5]On 21 January 2000 there was an IT3 from Headcount complaining about the lack of particularity in Mr Pandya's claim. On 24 January 2000 it seems the Tribunal made an Order for particulars in relation to Mr Pandya's claim against Headcount. On 30 January 2000 Mr Pandya answered that request and, to go forward in time for a moment, the Tribunal later described the form that Mr Pandya then supplied. The Tribunal later said this:
"The applicant responded by letter 30 January with enclosures. However, although the applicant said his claim was self-explanatory, as it was still not clear what claim he was bringing, the case was listed for a preliminary hearing to consider whether the case should be struck out as being frivolous or vexatious under the power in rule 13(2)(d) of the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 1993. That is in the sense that unless the applicant shows that he has a claim falling within the jurisdiction of the Tribunal his claim must inevitably fail and therefore is frivolous or vexatious."
[6]On 15 March 2000 there was a hearing at the Employment Tribunal at Leicester, a 3 person panel heard the matter under the chairmanship of Mr J A Threlfell. The Tribunal recorded the way in which they had questioned Mr Pandya. In their paragraph 3 they say this:
"The applicant appeared before us today and we asked him to explain his claim. He told us that the respondent was advertising for a job on behalf of Powergen, that he had applied for the job and passed the screening, but he had not been offered the job. He asked for reasons why he had not been offered the job, but did not receive any. He said that the job had ended for dubious reasons. He said that there had not been equal opportunities. We asked him several times to tell us why he considered that he had not been offered the job, but on each occasion his response was that he did not know why they had not offered him the job. The only explanation he could put forward was that he had not been able to get employment since coming to this country some years ago, apart from a spell with Wolsey and he considered there was a conspiracy of employers, which was working against him. We explained to the applicant that our powers are limited to the jurisdiction conferred by Parliament upon a Tribunal and that he would have to tell us on what basis he was claiming that he had not been offered employment, he told us that he was unable to do so unless he had details from the respondent. We pointed out that the onus was on the applicant to tell us why he alleged he had a claim and that we would only require the respondent to respond once the applicant had given us the grounds on which he is bringing his claim. At that Mr Pandya said that he had nothing more to say."
[7]The hearing, as I mentioned, was on 15 March and on the next day, 16 March, the decision was sent to the parties. It was unanimous and it was that the application should be struck out and dismissed as being frivolous or vexatious. The Applicant, Mr Pandya, was ordered to pay £100 towards the Respondent's cost. In paragraph 4 the Tribunal said:
"As the applicant has been unable to show us that he has a claim which falls within the jurisdiction of the Tribunal, we are satisfied that his claim is bound to fail and is, therefore, frivolous or vexatious. We, therefore, strike out the application and dismiss it for that reason."
[8]On 24 March Mr Pandya asked the Employment Tribunal for a review and on 27 March the review was declined. It had no prospect of success, said the Chairman, and that was the decision that they sent to Mr Pandya. On 9 May the Employment Appeal Tribunal received a Notice of Appeal from Mr Pandya. On 11 May the Appeal Tribunal wrote to him saying that the appeal against the Order of 16 March was eleven days out of time and the appeal against the Order of 27 March was one day out of time and asked him whether he sought an extension of time.[9]On 20 May Mr Pandya indicated that he relied upon a certificate of posting of 8 May but the date of a would-be Appellant sending a document is largely irrelevant. What is relevant is the date of the Appeal Tribunal's receipt of a document and a certificate of posting of 8 May was, of course, consistent with the Employment Appeal Tribunal receiving it on 9 May, which indeed was what the Appeal Tribunal had done.[10]In that letter of 20 May there was no explanation of why the Notice of Appeal in respect of the decision of 16 March was late or, indeed, why the later decision had not led to a timely Notice of Appeal. On 22 June 2000 Mr Pandya wrote again to the Employment Appeal Tribunal but again failed to explain the lateness of his Notice of Appeal. On 29 June the Registrar made an Order. In part it reads as follows: AND UPON CONSIDERATION of paragraph 3(1) of the Practice Direction (Employment Appeal Tribunal – Procedure) where it is clearly the responsibility of the Appellant to ensure that an appeal is submitted to the Employment Appeal Tribunal within 42 days AND UPON due consideration of the Judgment given in UNITED ARAB EMIRATES AND(1) MR ABDELGHAFAR(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"[11]On 30 June Mr Pandya indicated a wish to appeal against that Order of the Registrar but he resolutely continued to fight the wrong battle in the sense that he was chiefly concerned with the underlying merits, to call them that, rather than with the question of reasons why an extension of time should be granted or an explanation of the delay in the lodging of the Notice of Appeal. In his letter of 30 June he says, amongst other things, this:
"I would like an order from the Employment Appeal Tribunal to obtain further and better particulars from Headcount on equal opportunities it persues in its recruitment and employment including nationality and religions, and the types of clientel it has ie whether they also have similar policies; with the Employment Tribunal's chairman notes before the hearing."
[12]On 30 October Mr Pandya's appeal against the Registrar's Order came before Mr Justice Charles in Chambers. Counsel appeared for the Respondent, Headcount, but no one appeared for Mr Pandya who did not attend in person either. But there was a difficulty that day and Mr Justice Charles says in his paragraph 3:
"Mr Pandya is not here today. I record that today is a day of extreme travel difficulties. We received no prior notification that he was not intending to come. We have had no contact from him today and have been unable to contact him ourselves. He lives in Leicester. Having said that, the representative of the Respondent company has managed to get here and has travelled from Wakefield. At the opening of the appeal I indicated that I would hear it and deal with the matter on paper but, given the circumstances I have just described, would give Mr Pandya the opportunity to apply to vary or discharge the Order and seek a further oral hearing initially on an ex parte basis."
[13]Mr Justice Charles went into the underlying circumstances and referred to the Abdelghafar case and also to the more recent case Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 and he said at the end:
"In short, in my judgment, he (that is Mr Pandya) has shown no adequate reason which would warrant this Tribunal exercising its discretion to grant an extension of time in respect of the two appeals that are before me today. Accordingly this appeal is dismissed."
But, of course, he gave the leave to apply for an ex parte re appraisal which I have described. Today Mr Pandya indicates that the reason why he did not attend on 30 October was that he had hoped to save the inconvenience and, no doubt, expense of travel and hoped and expected the matter to be dealt with on paper, as indeed it was.[14]Since then Mr Pandya has written letters of 12 December to the Court of Appeal, 12 December to the Employment Appeal Tribunal and 14 March 2001 also to the Employment Appeal Tribunal. He does not explain beyond the explanation that I have mentioned already his failure to attend the Employment Appeal Tribunal on 30 October nor give any reason for his delay in not lodging a Notice of Appeal against the decisions of 16 March or 23 March until he was out of time.[15]I have asked him more than once to explain the delay and he says that the answer is in the paper work but I have been quite unable to find the reason for the delay in the papers laid before me. In his communications, and what he has told me today, he truly affords to me no reason to grant the exceptional relief of an extension time. He gives me no reason to doubt the correctness of Mr Justice Charles' decision of 30 October, nor any reason why, exercising a discretion afresh, I should do otherwise than did the Registrar on 29 June, namely to refuse an extension of time.[16]Moreover, although the underlying merits of an appeal usually play relatively little part in applications for an extension of time, Mr Pandya has not given me any reason to think that the underlying merits of an appeal of his are such that it is likely to have any really lively prospect of success. He seems resolutely to have resisted invitations and instructions to say precisely what it is that he is complaining of or, at any rate, to indicate what he is complaining about in such a way as brings his complaints within some obvious jurisdiction of the Tribunal.[17]The Tribunal plainly needs to see what jurisdiction is being invoked so that it can tell whether it is a jurisdiction which it is open to it to exercise. And the Tribunal below obviously invited Mr Pandya but Mr Pandya failed to respond to the invitation. It seems to me I have no alternative but to dismiss the Ex Parte Application and to leave Mr Justice Charles' Order standing and to that extent, therefore, there is a refusal to extend time for the lodging of a Notice of Appeal out of time and the out of time Notice of Appeal therefore is to be dismissed.