MR S KANAPATHIAR v LONDON BOROUGH OF HARROW [2003] UKEAT 1281_02_2502

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1281_02_2502Case No Appeal No. PA/1281/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S KANAPATHIARAPPELLANTLONDON BOROUGH OF HARROWRESPONDENT
Before
Mr Justice BurtonDate 25 February 2003
[1]APPEARANCES For the Appellant The Appellant in person For the Respondent Mr S Gee A Solicitor London Borough of Harrow Borough Secretary & Solicitors Department Civic Centre Station Road Harrow THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is the hearing of an appeal by the London Borough of Harrow against the Decision of the Registrar of 6 December 2002 which granted the Appellant, Mr Kanapathiar, an extension of time, in effect, of one day in which to present his Notice of Appeal to the Employment Appeal Tribunal.[2]Mr Gee, of the London Borough of Harrow, has very properly raised a number of matters for consideration by the Employment Appeal Tribunal but in the light of the fact that this Tribunal has indicated that it proposes, as I now do in this judgment, to re-emphasise the strictness and lack of flexibility which apply to the Rules and to explain the circumstances in which the one day extension was exceptionally given to Mr Kanapathiar in this case, he does not pursue his appeal further before me today.[3]The brief facts in relation to Mr Kanapathiar are that he wished to appeal against the Decision of the Employment Tribunal sitting at Watford on 29 to 31 July 2002 in relation to a Decision which was promulgated by way of Extended Reasons on 15 August 2002. The promulgation of those Extended Reasons starts the forty two days running under the Employment Tribunal Rules and the Practice Direction for the putting in of a Notice of Appeal. Rule 3 of the Employment Appeal Tribunal Rules 1993 reads in material part as follows: "(1) Every appeal to the Appeal Tribunal shall, subject to paragraphs (2) and (4), be instituted by serving on the Tribunal the following documents:-(a) a notice of appeal in, or substantially in, accordance with Form 1, 1A or 2 in the Schedule to these rules;(b) a copy of the decision or order of an employment tribunal ……… which is the subject of the appeal;(c) in the case of an appeal from an employment tribunal, a copy of the extended written reasons for the decision or order of that tribunal. (2) The appellant shall not be required by virtue of paragraph 1(c) to serve on the Appeal Tribunal a copy of the extended written reasons for the decision or order of the employment tribunal in a national security appeal ….. (3) The period within which an appeal to the Appeal Tribunal may be instituted is - (a) 42 days from the date on which extended written reasons for the decision or order of the employment tribunal was sent to the appellant;" [there are then different provisions in relation to a national security appeal with which I do not need to deal][4]In this case, therefore, with regard to this Appellant, the forty two days began to run from 15 August, and it is well established that the date of promulgation is the date recorded in the register of the Employment Tribunal as the date on which the decision was sent to the parties. The time of forty two days thus expired at what is traditionally called "close of business", although I am not sure the Employment Appeal Tribunal has a close of business, on 26 September.[5]The Appellant was suffering from ill-health and, in fact, had an operation on 18 September. He was impeded by a catheter which, in fact, he needed to have with him, as I understand it, at all times. He had two copies of the Extended Reasons, one of which he gave to his legal adviser, he has told me, and the other of which he included with the Notice of Appeal in the post, which was sent on 25 September; it did not arrive until 27 September, as now appears. That Notice of Appeal, had it arrived in time, would have constituted on any basis a valid Notice.[6]In circumstances which are not entirely clear to me, the Appellant was concerned that the Notice of Appeal which he posted would not arrive on time; but what he did thereafter, whatever his reason for doing so, reflects credit on him, an anxiety to make sure that the Notice of Appeal was in on time, and so he came, personally, I think notwithstanding a tube strike, and also notwithstanding his catheter, to the Employment Appeal Tribunal on 26 September, in order to ensure that, as he saw it, his Notice of Appeal was put in, irrespective and in addition to what he had posted. Unfortunately however, he had no further copy of the Extended Reasons, and so what he lodged on 26 September was the Notice of Appeal unaccompanied by the Extended Reasons, which was not a valid lodgement of the Notice of Appeal within the Rules. It did not become valid until the Extended Reasons arrived the following day, and thus the Notice of Appeal which requires, in order to be valid under the Rules, the lodgement of the accompanying Extended Reasons, was one day out of time.[7]The Appellant did not make an application for an extension of time until 7 October 2002. The then Practice Direction, in fact in the same terms as the new Practice Directions which were effective as from 6 December 2002, contained the following provision at paragraphs 3.2:
"2. Every Notice of Appeal served after the expiration of the prescribed period of 42 days must be accompanied by a written application for an extension of time, explaining clearly and concisely the reasons for delay in serving the Notice of Appeal. 3. Applications for an extension of time for appealing cannot be considered until a Notice of Appeal in the prescribed form has been served."
Notwithstanding that the application of 7 October did not, for obvious reasons in these circumstances, accompany the Notice of Appeal, the Registrar considered the application for an extension out of time, and as I have indicated, made her decision in favour of the Appellant on 6 December 2002.[8]The Registrar's decision was set out in a speaking Order as follows, after reciting the application by letter dated 7 October 2002, and her consideration of submissions of the Respondent and further submissions from the Appellant. "UPON DUE CONSIDERATION of Rule 3(3) of the Employment Appeal Tribunal Rules 1993 where it is clearly the responsibility of the Appellant to ensure that an appeal is submitted to the Employment Appeal Tribunal within 42 days of the date the written Extended Reasons of the Employment Tribunal were sent to the Appellant AND UPON CONSIDERATION OF Rules 3(1)(b) and (c) of the Employment Appeal Tribunal Rules 1993 that in order to institute an appeal the Notice of Appeal shall be accompanied by a copy of the decision or order or a copy of the extended written reasons. If it is not so accompanied, an appeal is not instituted. AND UPON CONSIDERATION of the fact that the Notice of Appeal has been lodged one day out of time as the original Notice of Appeal had no extended reasons and the appeal was therefore not properly constituted AND UPON CONSIDERATION of the fact that because the Employment Appeal Tribunal is not part of the Employment Tribunals information is provided with the Employment Appeal Tribunal Decision giving details of how to appeal and the address to which appeals should be sent. AND UPON CONSIDERATION of MOCK -V- COMMISSIONERS OF THE INLAND REVENUE (1999) IRLR 785 that time begins to run when the extended reasons are sent to the parties by the Employment Tribunal. Therefore the Appellant cannot claim that time begins to run at the moment of any alleged receipt. AND UPON CONSIDERATION of the fact that the appellant should be aware of the importance of time limits and that these will be relaxed only in rare and exceptional cases where the EAT is satisfied that there is a full, honest and acceptable explanation of the reasons for the delay (AZIZ V BETHNAL GREEN CITY CHALLENGE COMPANY LTD 2000 IRLR 111 ) AND UPON CONSIDERATION of the fact that it is not an acceptable reason for delay that there was a tube strike. The appellant's initial appeal would have been in time if properly constituted and it is his duty to conduct his affairs with diligence. AND UPON CONSIDERATION of the case of AZIZ where Butler-Sloss LJ said that the EAT "has its own good reasons for requiring the parties to deal with proposed appeals expeditiously ….. it is right that on appeals on law people must get their cases in in time" HOWEVER UPON CONSIDERATION of the fact that the Employment Appeal Tribunal has heretofore applied the Rules of receipt of an appeal with proper documentation in a lax manner so the appellant had a legitimate expectation of the original appeal would be accepted. IT IS CONSIDERED that there has been shown an 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 granted."[9]The appeal by Mr Gee, on behalf of the Respondent, is put on the following basis. The third ground is that the Respondent was not given an opportunity to comment on the reply submissions by the Appellant, but that, at any rate, has been cured, if ever material, by the fact that he has now had that opportunity, and the opportunity to pursue this on an oral hearing before me, on appeal from the Registrar.[10]But the two grounds which have been at the forefront are as follows.(1) That the very authorities referred to by the Registrar indicate the narrow eye of the needle through which an appellant can and should have to climb, and that, on any basis, whatever the compassionate circumstances, this Appellant has not satisfied them; and that the Registrar was wrong to indicate that there had been a lax practice, when in fact there had not been a lax practice, as recognised by the authorities referred to.(2) That the concept of legitimate expectation has no applicability in this regard, certainly on the facts of this case, because there had been no representation made to the Appellant on the basis of which he had altered his conduct.[11]I certainly accept, as I immediately put to Mr Gee when he rose to his feet, that the situation is not properly characterised as legitimate expectation. The Appellant, in his own able Skeleton Argument put before me today, has sought to assert that he did have a legitimate expectation, attempting to make the best that he can of the Order made in his favour by the Registrar in that regard, because he says he was given assurances by the officials at the Employment Appeal Tribunal that all would be well. But that clearly cannot constitute legitimate expectation, and in fact he had already launched upon the practice which let him down, namely not annexing the Reasons to the Notice of Appeal, by sending them by post at the very uttermost of the generous forty-two day period and travelling up without them.[12]What the Registrar plainly is, in my judgment, referring to is not any legitimate expectation on the part of this Appellant, but on the fact that there has indeed, as she indicates in the Order, contrary to the understanding of Mr Gee, been a lax practice at the Employment Appeal Tribunal. It has certainly not been lax in relation to the lodging of a Notice of Appeal simpliciter within the forty-two days, because that has been guided by the Court of Appeal's approval of its own practice, which has been the reverse of lax; regarding the forty-two day period as being extremely generous and thus to be applied very strictly, even where applications for an extension has only related to one day out of time.[13]Whereas that has been the case, a different practice has been operated in relation to situations such as the present. Those situations are where there has been a Notice of Appeal simpliciter put in in time, but it has not been accompanied by the necessary accompanying documents, namely, in this case, the Extended Reasons. That, as the Registrar has rightly indicated in her recital, rendered the Notice of Appeal invalid, because it is a requirement of a valid Notice of Appeal that it must be so accompanied. However it has been regarded by the officials at the Employment Appeal Tribunal as a lesser offence, if I can put it that way. Where a Notice of Appeal, unaccompanied by Extended Reasons, has been put in in the forty two days, prior to the new Practice Direction that has been regarded more leniently, and extensions of time have been granted. Indeed, there have been cases in which the associates have themselves got in contact with the Employment Tribunal, and obtained, at some inconvenience and, I suppose, cost, the Extended Reasons themselves, which it was the duty of the Appellant to bring before the Tribunal, under the Rules. That will and must now stop, and certainly, since the new Practice Direction, there has been no application for an extension on that basis, and certainly none that has been granted; and this case, by the very Order which the Registrar has made, signals the end of any laxity in this regard. From that point of view it is useful that Mr Gee has, on his client's behalf, brought the matter forward on appeal, so that I can deliver this judgment in open Court, and make the position entirely clear for the future.[14]However, it is equally clear that, in the discretion of the Registrar, this was an appropriate case, not only because of the particular compassionate circumstances, but also because this would be the case used as an affirmative signal of the end of the previous lax practice, for the grant of what is, after all, only a one-day extension.[15]In those circumstances, the appeal will be dismissed, but I take the opportunity of thanking Mr Gee for bringing this forward on appeal, and recognising that this gives an important occasion for this Tribunal to make the position entirely clear, namely that, in future, the same strict approach, approved in terms by the Court of Appeal in Aziz , will be adopted in respect of a Notice of Appeal which is not accompanied by the required documents within the forty-two days, as has previously been applied to a Notice of Appeal not lodged at all within forty-two days.[16]I should say one word about the subordinate point which was raised by Mr Gee, by reference to the Practice Direction at 3(2) and (3) which was, as I earlier indicated, identical in the old Practice Direction as in the new. Although not pursued, but only touched upon in his submissions, and properly and helpfully so by Mr Gee, he did assert that it was another failure in this case that, contrary to Practice Direction 3.2, an application for an extension of time was only made on October 7 th , not at the same time as the Notice of Appeal. He submits that this must be a breach of paragraph 3.2 which requires that every Notice of Appeal served after the expiration of the prescribed period of forty-two days must be accompanied by such an application, and accompanied is a perfectly understandable word, which plainly, at any rate in this case, was not the case.[17]It appears to me that it is right that there should be such a paragraph in the Practice Direction, and it has been repeated in the new one, because in the normal course there must be such an obligation, the normal course being that someone is out of time, and knows it, and is expected, when applying out of time, to serve simultaneously the Notice of Appeal and an explanation for its delay. But it appears equally to me that paragraph 3.2. cannot be intended to be wholly prescriptive and exclusive. That can be seen, if for on no other basis, from the very existence of subparagraph 3.3, which would be unnecessary if 3.2 were all governing.[18]There will be cases, no doubt such as this one, in which, when the Notice of Appeal is sent or despatched, or delivered, it is thought that it is in time or, at any rate, not appreciated that it is out of time; and in such circumstances it is not practicable for it to be accompanied by an application for an extension. It would only be when it was appreciated that the Notice of Appeal had been lodged out of time that it would then become appropriate as speedily as possible to follow it up with an explanation in accordance with 3.2. That is certainly how I conceive that this system can and should be operated, it cannot expect the impossible. I believe that can be done by a sensible construction of 3.2, and I would not consider it sensible to change the presenting wording of it, or suggest that it would not normally be regarded as the right way of proceeding, and in relation to that too, there will be little sympathy for failure to comply with it.[19]In those circumstances, I dismiss the appeal and Mr Kanapathiar's appeal will go forward for hearing.

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