MR A S ABDELMASIEH v LE MERIDIEN WORLDWIDE LIMITED [2003] UKEAT 1416_02_2502

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1416_02_2502

Case No Appeal No. PA/1416/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A S ABDELMASIEHAPPELLANT

LE MERIDIEN WORLDWIDE LIMITEDRESPONDENT

Before

Mr Justice Burton

Date 25 February 2003

[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal against the Order of the Registrar refusing an extension of time for appealing a Decision of the Employment Tribunal which in fact took place on 19 February 2002, sought by the proposed Appellant Mr Abdelmasieh. The Order of the Registrar is a Speaking Order, and correcting one typographical error, as I can see it must be, it sets out first the fact that there was an application by letter dated 25 October 2002, to which I will refer, and then reads as follows:

"AND UPON consideration of the aforesaid letter and a letter from the Respondent dated the 1 st day of November 2002 and a further letter from the Appellant dated the 10 th day of November 2002. AND 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 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 hundred and ninety four days out of time as the original Notice of Appeal which was received on 18 th July 2002 ….. was returned to the appellant because no extended reasons were submitted with it and the appeal was therefore not properly constituted. In any event that Notice of Appeal was ninety two days out of time. 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 Tribunal Decision giving details of how to appeal and the address to which appeals should be sent. 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 day (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 the appellant's wife is very ill and that he had to take care of his daughter and also work. Although this Court sympathises with the appellant's difficulties, six weeks is a generous time in which to appeal. ASND UPON FURTHER CONSIDERATION of the judgment given in UNITED ARAB EMIRATES AND (1) ABDELGHAFA & OTHERS 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 that 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."

[2]The Appellant, who remains, as I understand it, unrepresented, has unfortunately not been able to attend today but is, according to the message he passed to this office, happy for the matter to be considered on the papers already lodged, all of which I have read. Those papers include a most recent letter dated 21 February 2003, with its annexures. There are also before the Court some submissions from the Respondent dated 20 February 2003 which have not, in the event, added anything material to what is already in the papers which I have read.

[3]The brief history of this case starts at the hearing of February 19 th 2002, to which I have referred, and against one of the Orders made on which hearing the Appellant now wishes to appeal. The Decision was promulgated on 6 March 2002. A Notice of Appeal against part of that Decision was lodged with the Employment Appeal Tribunal in a document dated 14 July and was received on 18 July 2002. The Notice of Appeal stated this:

"The appellant appeals from Directions and Orders of the Employment Tribunal - at a hearing for directions 19/02/02 " and the grounds were set out as follows: "1 The Chairman did not give me enough time to defend myself. 2 A decision was wrongly made as a result of an error on the part of the Tribunal staff."

[4]Not only is it a statutory requirement that such a Notice of Appeal must be accompanied by the Decision in question but in this particular case that was even more essential because without the Decision the contents of that very brief Notice of Appeal were entirely incomprehensible; and in any event, that Notice of Appeal, even had it been valid, was ninety four days out of time, beyond the extremely generous period of forty two days, which was laid down by the Rules and which has been proved as a non-flexible time limit in Aziz , the Court of Appeal decision to which the Registrar refers.

[5]A letter was sent by the Employment Appeal Tribunal on behalf of the Registrar on 18 July 2002 pointing out that the appeal was not properly instituted in accordance with paragraph 3(1)(b) of the Employment Tribunal Rules. That recites as follows:

"Every appeal to the Appeal Tribunal shall, subject to paragraphs (2) and (4), be instituted by serving on the Tribunal the following documents …. (b) a copy of the decision or order of an employment tribunal …. which is the subject of the appeal"

And that rule was set out in full in the letter of 18 July, as was the reminder of the time limit of forty two days in paragraph 3(3)(a).

[6]Notwithstanding that letter, it was only by a letter of 25 October 2002 that the explanation for the appeal was eventually given and a copy of the Decision of 19 February was filed when it was received under cover of that letter on 28 October. The letter of 25 October read as follows:

"I refer to your letter dated 18/07/2002 about (No copy of the Employment Appeal Tribunal Decision being appealed [being] enclosed with notice of Appeal)" and then it continues: "for compensation for working as a kitchen porter for unpaid wages from 1997 till I was dismissed from my job in September 2001, the item no (I.C) from the originating application form."

That in itself is still not very clear, but it becomes clear by a perusal of the Order of 19 February referred to and what was still later provided to this Tribunal, namely a copy of the Originating Application.

[7]The Originating Application before the Employment Tribunal was a lengthy document. It complained about a number of matters, including unfair dismissal and breach of contract, relating to his eventual dismissal from his employment in circumstances in which he had allegedly removed items from the employer to which he was not entitled and without their permission. 1C read as follows:

"Kindly please I would like to take my employer to an employment tribunal to claim reinstatement and compensation for the following:" and the A and B relate to alleged personal injuries. C is: "

Compensation for working as a kitchen porter from March 1997 until I was dismissed." D and E relate to allegedly unpaid sick pay, F relates to a claim for reinstatement as a night chef and then paragraphs 2 primarily relates to compensation for unfair dismissal and 3 a claim for breach of contract.

[8]The hearing before Mr Baron as Chairman, sitting alone, on 19 February 2002 made the following direction in paragraph 5 of the Order, after reciting:

"I explained to the Applicant that the Tribunal did not have any jurisdiction in respect of all of those claims except the final one, and that there appeared to be no substance in the final claim. I gave the Applicant an opportunity to explain why those claims should not be removed from his originating application. On the grounds that the heads of claim are misconceived, in accordance with rule 15(2)(c) I order that the originating application be amended by the removal of items 1A, 1B, 1C, 1D and 2B at the end of the application."

As can be seen, that left a claim for 1E in respect of unpaid sick pay, 1F for reinstatement and 2A compensation for unfair dismissal and 3 as a claim for breach of contract, but under Rule 15(2)(c) it dismissed the claim inter alia under clause 1C.

[9]It was therefore plainly the Order striking out such claims as misconceived, pursuant to Rule 15(2)(c) of the Employment Tribunals Constitution and Rules of Procedure Regulations 2001 Schedule 1, that the Appellant has sought to appeal. The lodgment of the Order perfected the Notice of Appeal which was thus, as the Registrar has recorded, one hundred and ninety four days out of time.

[10]I must now turn to what had been going on in the meanwhile, after that striking out of the particular claim 1C about which the Appellant seeks to complain. Attached to the recent letter of 21 February there is a letter, not before the Registrar but now before me, dated 20 March 2002 in which the Appellant wrote to the Regional Secretary of the Tribunals as follows:

"I am writing following the Directions and Orders hearing on the 19 th February 2002. My application has been amended by the removal of items 1A, 1B, 1C, 1D and 2B. Item 1C concerns work I undertook as a kitchen porter in addition to my duties as a chef. I ask that 1C remain in my application as I wish to claim an unauthorised deduction from wages for the period referred to. I was not paid for this work and argue that I should have been."

He has not supplied to this Tribunal any reply to that letter, but on any basis he took no further steps, certainly none to appeal to this Tribunal.

[11]What occurred was that on 14 and 15 May 2002 there was a hearing before the Employment Tribunal at London Central, in front of a different Chairman and members, in which the balance of his claims were dealt with and the unanimous Decision of the Tribunal was that the claims of breach of contract and unfair dismissal were refused. There is no record in that Decision of any complaint made by the Appellant or any attempt, misguided or unsuccessful or otherwise, to resuscitate 1C before them. At the end of paragraph 1 of the Decision, the Tribunal recites: "There were other claims in the Originating Application which were struck out at a directions hearing which was held on 6 March 2002" [that is an error, of course, as it was the Decision which was promulgated on 6 March 2002] But the Appellant allowed that hearing to go ahead without his having appealed the earlier strike-out. That Decision was promulgated on 7 June 2002.

[12]On 11 June the Appellant wrote again to Mr Fulcher, the Regional Secretary of the Tribunals, an identical letter to that which he had sent, according to his most recent communication to this Tribunal, on 20 March. Once again, there is no indication as to whether there was any response to that letter, if it was received by the Employment Tribunal, but it was now, of course, not only four months since the original hearing, but there had already been the intervening application and its result, namely the dismissal of the balance of his claims.

[13]On 7 June, he sought a review of the dismissal by the Employment Tribunal of the balance of his claims. That application was considered on 19 June and, in a Decision which was promulgated on 26 June 2002, his application for such review, namely a review of the dismissal of the balance of the claims, again making, understandably, no reference to the original struck-out 1C, was dismissed. Even then, there was no appeal to this Tribunal until the Notice of Appeal to which I earlier referred of 14 July, received on 18 July.

[14]Notwithstanding the Registrar's letter of 18 July, to which I have referred, pointing out the invalidity of the Notice of Appeal, it was,` as I have stated, not until 28 October that the Employment Appeal Tribunal received the original Order of 19 February, notwithstanding that there was also an appeal lodged against the June Decision, which was the subject of a valid Notice of Appeal by the Appellant and was dismissed at a preliminary hearing in November.

[15]This appeal, therefore, is very substantially out of time and its out-of-timeness does not depend upon any technical failure to serve documents, because even the original Notice of Appeal, which did not annex any document which could have led anyone to understand what the appeal was about, was itself substantially out of time.

[16]The case of Aziz which confirms the practice of this Tribunal in regarding, very inflexibly, as very generous the forty two day time limit, even to the extent of ruling out applications for an extension which were only one day out of time, emphasises that any extension will be exceptional, and any extension needs the fullest possible explanation justifying not just the last period of any forty two days, but the whole of the period of time, before any such discretion can be considered.

[17]The explanations given by this Appellant were contained originally in the letter dated 10 November 2002, referred to by the Registrar in the recital to her Order. It refers to the fact that the Appellant had to prepare himself; had to be in contact with his solicitor in respect of the hearing on 14 and 15 May, but he was sick for three weeks in June; that at one time his computer was broken; that he was busy with the correspondence with the Employment Tribunal and with the Employment Appeal Tribunal in respect of his appeal for unfair dismissal, and busy writing an affidavit; that he had a left arm injury, a full time job, a family and a house.

[18]His further explanation is sought to be included in a letter dated 4 December 2002, which includes the fact that he did not think he needed to lodge a document, and then finally in the recent letter of 21 February 2003, which I have read. Nowhere is there any explanation which begins to cover why he did not put in an appeal within the original forty two days, running as from 6 March, albeit that he was pursuing the balance of his claims and he already knew that he was not allowed to pursue one particular claim under 1C, and yet he did not appeal. He certainly does not give any explanation as to why he did not respond to the letter from this Tribunal of 18 July until 28 October. None of his various excuses, separately or cumulatively, begin to cover the period of one hundred and ninety four days, and not even the original period of ninety two days.

[19]In those circumstances, I have no hesitation in dismissing this appeal.