MR G ARROYO-VALENCIA v HOMEBASE LTD & OTHERS [2002] UKEAT 0845_01_1706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0845_01_1706Case No Appeal No. PA/0845/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G ARROYO-VALENCIAAPPELLANTHOMEBASE LTD & OTHERSRESPONDENT
Before
Mr Justice LindsayDate 17 June 2002
[1]APPEARANCES For the Appellant MR G ARROYO-VALENCIA (the Appellant in Person) For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT JUSTICE LINDSAY (PRESIDENT) I have before me an appeal by Mr Gerlin Arroyo-Valencia in the matter Arroyo-Valencia v Homebase Ltd & Others. That is the way that it is still listed. The appeal is against the Registrar's refusal to extend time to Mr Valencia for the lodging of a Notice of Appeal.[2]The chronology of the matter is as follows. On 12 February 2000 Mr Valencia lodged an IT1 for racial discrimination and victimisation against Homebase and some nine other Respondents. That was given a number which ended 338/00. On 1 March 2000 he lodged a second IT1 against United Road Transport Union & Others and that was given a number 456/00.[3]On 13 March 2000, in 338/00, Homebase put in its IT3 and it said that Mr Valencia had been dismissed for gross misconduct after there had been a TUPE transfer from Homebase to Tibbett & Britten Ltd and Homebase asserted that, on that ground, Homebase no longer had an interest in the matter and should be dismissed from the proceedings.[4]On 28 March 2000 there was an IT3 from the Union and from others in 456/00. On 4 April 2000, given the number that ended 681/00, Mr Valencia lodged yet another IT1, for racial discrimination, victimisation, unfair dismissal and dismissal contrary to the Protected Information Disclosure Act 1998 . He said that he had been employed from January 1998 to 8 March 2000 and he joined some 13 Respondents. In that matter Homebase Ltd was the first Respondent, Tibbett & Britten Ltd second Respondent, Tibbett & Britten and Homebase Partnership third Respondent and the remaining Respondents, from the fourth to the thirteenth, were individuals.[5]On 28 April 2000 an IT3 was put in by Homebase, again making the point that Mr Valencia had been dismissed for gross misconduct, after a TUPE transfer and again saying that, therefore, Homebase had no part to play and should be dismissed from the proceedings.[6]On 15 June 2000 there was a Directions Hearing in all three matters; 338/00, 456/00 and 681/00. The Appellant today, Mr Valencia, was represented on that occasion by Mr Michael Duffay from a firm, ELAC, a firm of Employment Consultants.[7]On 22 June 2000 the decision emerging from that hearing of 15 June was sent to the parties. Homebase & other were discharged from the proceedings in both 338/00 and 681/00. In other words, the argument that there had been a TUPE transfer that had effectively rendered them as having no interest in the proceedings was successful.[8]In 456/00, which was the Union case, that was directed to be heard separately. The remaining body of 338/00 and 681/00 was directed to be heard together and particular directions were given in the Union case for its further hearing and in relation to the remaining parts of 338/00 and 681/00.[9]That, as I say, was a decision sent to the parties on 22 June 2000. There is a relatively generous period for the lodging of a Notice of Appeal. It runs for 42 days from the sending out of the decision; hence it expired on or about 3 August 2000. At that stage no Notice of Appeal had been received.[10]The matters, of course, went ahead, with other parties involved, and on 10 August 2000 Mr Valencia, I think by then having parted company from ELAC, represented himself at a Preliminary Hearing and, amongst the subjects that he raised, was a request for a review of the striking out of Respondents that had occurred in the decision of 22 June.[11]He has put in a considerable body of papers for me to peruse this morning and amongst them is a document of 24 November 2001, addressed to Mrs Carter of the Employment Appeal Tribunal where, in paragraph 27, he said:
"At the end of the Preliminary Hearing held on 10 August 2000, when I asked the Tribunal for a review of the case regarding the Respondents struck out from the proceedings, contrary to the Respondent's suggestion and to the Employment Tribunal's Chairman Mr. Plenderleath assertions in the EXTENDED REASONS , my written application for a review in the letter dated 16 th September 2000 was rejected by the Tribunal."
[12]So, it is not a very clear sentence but it is plain that at the hearing on 10 August 2000 Mr Valencia did ask for a review of the striking out of the Respondents that occurred on 22 June 2000. He therefore was obviously by then familiar with what had happened in that respect.[13]The application for a review was unsuccessful. Mr Arroyo-Valencia re-applied for a review and he says that it was not until 8 May 2001 that he was finally clear that no review would be allowed in his favour.[14]On 29 August 2000 the decision of the hearing on 10 August 2000 was promulgated and hence 42 days began to run if there was to be any appeal against what had been done in respect of the hearing of 10 August 2000. Again, within the relevant 42-day period no Notice of Appeal was received. Indeed, no Notice of Appeal was received until 13 June 2001. It was a Notice of Appeal that purported to be against a number of decisions, namely those promulgated on 22 June 2000, 29 August 2000 and 8 June 2001.[15]I leave out of account mention of the decision of 8 June 2001 because there was no question of the Notice of Appeal being out of time in that case but it does fall to be considered as a Notice of Appeal against the decisions of, as I say, 22 June 2000 and 29 August 2000.[16]On 9 July 2001 the Appellant asked for an extension of time as to the lodging of the Notice of Appeal, which had been dated 13 June 2001 and was actually received on 15 June 2001. He claimed that he had not known that Homebase & Other had been discharged as Respondents and that that was a ground for an extension of time.[17]As is its practice in these matters, the Employment Appeal Tribunal then asked the Respondents' solicitors whether they opposed an extension of time and on 25 July and 1 August 2001 the Respondents' solicitors indicated that they resisted an extension of time. There was further communication and then on 28 September 2001 the Registrar made an order refusing to extend time.[18]On 9 October 2001 Mr Arroyo-Valencia lodged an appeal against the Registrar's order. He asserted that he had not properly and fully been told that Homebase and the Partnership had been dismissed as Respondents until 8 May 2001. The Notice of Appeal was dated 13 June 2001 and there was no unreasonable delay between those dates; such was his assertion.[19]Where does that leave matters? Well, Mr Arroyo-Valencia, although represented by ELAC at the hearing on 15 June 2000, seems shortly afterwards to have parted company from them. He purports to have heard a rumour from ELAC, after 15 June 2000, that it was to be requested that Homebase should be struck out as a Respondent. He says that he telephoned the Employment Tribunal asking for written material and in his outline submissions he says this: "The information the Appellant requested was then kindly sent to him 4 days later on 18 th July 2000, along with a few other documents and the information regarding the Interlocutory Hearing. It was only now, therefore, a total of 5 weeks after the event that had apparently taken place on the 15 th June 2000, that the Appellant was able to see to his surprise what had been decided without the Appellant's knowledge and consent.[20]So that, by, say, 20 July 2000 Mr Arroyo-Valencia knew of the discharge of Homebase & Other and of all the other directions given at the decision of 22 June.[21]How then is delay from 20 July 2000 (I have added 2 days to 18 July 2000 when the information was sent to Mr Arroyo-Valencia in order for him to receive it) to the signing of the Notice of Appeal on 13 June 2001 explained? There appear to be two and two only explanations for that considerable period of delay.[22]The first is that Mr Arroyo-Valencia was misled by communications to believe that the discharged parties were still active parties. He says at paragraph 22 of a letter to Mrs Carter (of the Employment Appeal Tribunal) of 9 July 2001:
"I must make it clear here that I did not take up the issue of the removal of Homebase and other Respondents at that time because as far as I was concerned the Respondents were still present as named Respondents in the case. My view is backed up and given credence by the letter dated 4 July 2000 and sent by Mr Oliver Dale the Respondents' representative and stamped as received by the Tribunal on the following day, 5 July 2000. Also all subsequent documents sent by ELAC to the Employment Tribunal also continue to refer to Homebase and others. Still further evidence is to be found in the letter dated 18 July 2000, sent to be by Mr S Cox, the Regional Secretary for the Tribunal, in which among other things, Mr S Cox, officially, made it very clear that the Respondents remained an active part of the process. Finally, most of the other correspondence from the Tribunal sent to me makes allusions to the Respondents in dispute. It is clearly therefore present in most of the correspondence between the Tribunals and the parties involved. Bearing in mind the above it is quite confusing to say Homebase and the Tibbett & Britten and Homebase partnership had been struck out from proceedings as all this correspondence had taken place well after the 15 June 2000. I am also including this matter for the EAT to consider and draw its own conclusion."
[23]It is, however, to be noted that the letter of 4 July 2000 there referred to was not sent to him, nor, indeed, by him. Moreover, subsequent ELAC documents were sent by ELAC to the Employment Tribunal. ELAC had ceased to act for him. Even if the documents had been seen by Mr Arroyo-Valencia at the time, which is not said, it is impossible to judge their propensity to mislead.[24]The letter of 18 July is as to Respondents remaining active and, of course, the Respondents were remaining active in the sense that there were many Respondents who continued to be part of the proceedings.[25]Mr Arroyo-Valencia, as I mentioned earlier, had himself applied in August 2000 for a review of the discharge of the Respondents from the case and so he plainly well knew that a discharge had indeed taken place. I do not see it as being possible to regard this first reason as providing a credible and satisfactory explanation of, or excuse for, the delay between the dates I have mentioned.[26]The second reason that is advanced is that a review had been applied for, that the application for a review was mishandled by the Employment Tribunal and that it was, indeed, not until 8 May 2001 that Mr Arroyo-Valencia finally knew that a review was going to yield him no satisfaction.[27]But that suggests that the pendancy of a review application provides a good reason to postpone an appeal. That is not the case and never has been the case; on the contrary, it has always been clear that such pendancy does not permit or authorise or sanction in any way delay in the lodging of a Notice of Appeal. Of course, even if it did, it would not explain the delay between 8 May 2001 and 13 June 2001. This second reason therefore also, in my judgment, fails.[28]I have been looking at the matter so far as if concerned only with the appeal against the decision relative to 22 June 2000 but the same considerations apply when one looks at it in relation to the decision of 29 August 2000.[29]I have to be guided by the leading cases in this area, the well-known case of UAE v Abdulghafar and the case in the Court of Appeal, Aziz v Bethnal Green . I find no acceptable explanation for the long delay, no explanation such as to excuse it. Mr Arroyo-Valencia has the burden of having to show to me something that justifies the exceptional course of allowing an extension of time beyond the relatively generous period which is given.[30]I can see that Mr Arroyo-Valencia may have a case that covered him until shortly before the expiry of the 42 days. He may or may not have fallen out with ELAC in such a way, or ELAC could have been negligent in such a way, that he was not informed of the outcome of the hearing of the hearing of 15 June which had led to the decision sent to the parties on 22 June 2000. That is a matter between him and ELAC. But, plainly, he was well enough informed by round about 20 July 2000 and yet, as we have seen, there was nothing material done until 13 June 2001.[31]In the circumstances I am unable, following the guidance of the cases that I have mentioned, to see a good ground for granting the exceptional course which Mr Arroyo-Valencia invites me to take and accordingly I dismiss the appeal, both in respect of the decision of 22 August 2000 and that of 29 August 2000. Both of those appeals are out of time and there is no extension of time and hence, in those two cases, the Notice of Appeal goes no further.[32]That leaves the third one, Mr Arroyo-Valencia; that is the decision promulgated on 8 June 2001. That was in time and on that one I will hear that next with other two members present because that is an effective matter.