MISS V G SPENCE v PIZZA HUT (UK) LTD [2002] UKEAT 1032_01_1502

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1032_01_1502Case No Appeal No. PA/1032/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS V G SPENCEAPPELLANTPIZZA HUT (UK) LTDRESPONDENT
Before
Mr Justice LindsayDate 15 February 2002
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE LINDSAY (PRESIDENT) : This is an appeal by Miss V.G. Spence in the matter Spence against Pizza Hut (UK) Ltd. Miss Spence appeals against the Registrar's refusal of an Order to extend time for the lodging of a Notice of Appeal that otherwise is out of time.[2]The case was listed to come on not before 2:00 pm. It is now 2:22 pm and nothing has been heard from Miss Spence to indicate whether she is or is not intending to be here today. We have no message, for example, as to trouble with transport or anything of that kind. Pizza Hut (UK) Ltd had earlier indicated that it did not intend to be represented. Accordingly, I shall have to go ahead in the absence of both sides.[3]The chronology is that on 30 May 2001 there was a hearing at Leeds Employment Tribunal of Miss Spence's IT1. On 20 June 2001 the decision of the Tribunal, which was under the chairmanship of Mr A.J. Simpson, was sent to the parties. The unanimous decision of the Tribunal was that the Applicant was fairly dismissed.[4]Both sides had been represented at that hearing at Leeds by persons with a knowledge of the law. On the one side, for Miss Spence, was Mr Harry Wheatley, described as a Law Graduate and, on the Respondent's side, Miss Helen Cookson, Solicitor.[5]On 6 July Miss Spence applied to have that decision reviewed. On 26 July 2001 the review was refused. On 31 July a date was put to a Notice of Appeal by Miss Spence. On the very first moment of the next day, 1 August 2001, the 42 days for a timely Notice of Appeal expired. The Notice of Appeal signed, as it would seem on 31 July 2001, had not been posted, so far as one can tell from the postmark, until 1 August 2001. The Notice of Appeal was not received here, which is the crucial time, until 2 August 2001. On the very same day, 2 August 2001, the Employment Appeal Tribunal wrote to tell Miss Spence that her Notice of Appeal was one day out of time.[6]On 23 August, they having been approached, the Respondent's Solicitors opposed any extension of time. On 13 September the Deputy Registrar made her Order. It recites a mention of the well known case of United Arab Emirates v Abdelghafar [1995] ICR 65 . It said that no exceptional reason why an appeal should not have been presented in time had been shown and it concluded "and it is hereby ordered that the aforesaid application for an extension of time in which to enter a Notice of Appeal be refused".[7]On 19 September Miss Spence appealed. Her Notice of Appeal, signed by Mr H. Wheatley on behalf of Miss Spence, says:
"1 The notice of appeal was not out of time as it was posted on 31/7/01 and was delivered to the offices of the Employment Appeal Tribunal between 6 pm and midnight on the 1st August. 2 In the alternative, if it was considered out of time, then the decision to refuse the application was unreasonable when considering all the facts of this case, not least of which is the fact that the Tribunal are prepared to see a young woman character [sic] destroyed and her future employment minimised because a letter was at the most 9 hours late, due to circumstances over which the Appellant had no control whatsoever."
[8]As to those two grounds in the Notice of Appeal, first of all the post-mark is 1 August 2001. It was not stamped otherwise than as posted on 1 August 2001. It is stamped as received here on 2 August. There was no postal delivery to the Employment Appeal Tribunal between 6:00 pm and midnight on 1 August 2001. Secondly, it was not just nine hours late; the last moment of 31 July was the last moment for timely delivery of the Notice of Appeal and it is not understood how it can be said that the lateness of the Notice of Appeal was beyond Miss Spence's control. Even if she had not received the Extended Reasons in the ordinary course of post starting from 20 June, she must have had them in her hands at the latest in order to seek to review them on 6 July 2001. That left some 25 days in which to compose a Notice of Appeal and lodge it.[9]On the face of things, the failure to observe the time limit was certainly within her control. There is no explanation on affidavit or, indeed, otherwise to explain why the Notice of Appeal was late. I have to have in mind not only the well known case of Abdelghafar and the guidelines it laid down but also the later case of Aziz v Bethnal Green [2000] IRLR 111 . In that case there was a challenge in the Court of Appeal on the grounds that the Employment Appeal Tribunal habitually took a much sterner line as to lateness than did the Court of Appeal with the Court of Appeal's own Notices of Appeal.[10]In the Court of Appeal in Aziz it was pointed out that the 42 day period was a relatively generous period for the lodging of a Notice of Appeal and the Employment Appeal Tribunal's strict line was not undone in any way by the Court of Appeal decision.[11]There are many cases in which Notices of Appeal are struck out or fail to get an extension even where the delay is as short as it is here. In the absence of any explanation and no representation today I therefore dismiss the appeal.