UKEATPA/0221/10/JOJ MISS U GAVIN v COMMISSION FOR RACIAL EQUALITY / CEHR / EQUALITY + HUMAN RIGHTS COMMISSION [2010] UKEAT 0221_10_1012

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0221_10_1012Case No Appeal No. UKEATPA/0221/10/JOJ UKEATPA/0878/10/DA UKEATPA/0889/10/DA UKEATPA/0924/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
UKEATPA/0221/10/JOJ MISS U GAVINAPPELLANTCOMMISSION FOR RACIAL EQUALITY / CEHR / EQUALITY + HUMAN RIGHTS COMMISSIONRESPONDENTSUKEATPA/0878/10/DA & UKEATPA/0889/10/DA MRS E C SHAWAPPELLANTMR & MRS UPTON T/A ALTERNATIVE SANDWICHESRESPONDENTSUKEATPA/0924/10/RN MR S KAPOORAPPELLANTICICI BANK UK PLCRESPONDENTS
Before
His Honour Judge McMullenDate 10 December 2010
[1]APPEARANCES UKEATPA/0221/10/JOJ For the Appellant MS U GAVIN (The Appellant In Person) For the Respondents MR D DYAL (of Counsel) Instructed by: The Equality and Human Rights Commission Corporate Law & Governance 3 More London Riverside Tooley Street London SE1 2RG UKEATPA/0878/10/DA, UKEATPA/0889/10/DA For the Appellant No appearance or representation by or on behalf of the Appellant. For the Respondents MR D UPTON (The Respondent In Person) UKEATPA/0924/10/RN For the Appellant MR S KAPOOR (The Appellant In Person) For the Respondents MS A REINDORF (of Counsel) Instructed by: Messrs DLA Piper UK LLP 3 Noble Street London EC2V 7EE SUMMARY PRACTICE AND PROCEDURE – Time for appealing Three out of time appeals dismissed, two of which have no merit. No exceptional grounds exist for the exercise of discretion. HIS HONOUR JUDGE McMULLEN QC In these cases, I will refer to the Claimants and Respondents as they were at the Employment Tribunal. All three appeals this morning are under rule 21. They are appeals from the Registrar against her refusals to register Notices of Appeal sought be lodged by each of the three Appellants.[2]At the outset of today's proceedings, there was a mixture of representation and non-appearance and I decided to follow the procedure which I set out in Muschett v London Borough of Hounslow and others [2009] ICR 424 and to hear all of the cases together and give judgement at the end, since there are common directions. The Appellant, Ms Gavin, was not in attendance when the case was called on and so could not participate in the case management, but it is in accordance with the overriding objective that these three cases which raise common questions of law and EAT practice be the subject of the same legal argument and legal direction, while, of course, separating out the different factual circumstances. She appeared late and joined in.[3]It is also in the interest of Mr Upton, a Claimant on the receiving end of a Notice of Appeal from his former employer, that he was able to see the procedure in action here, both tested on live evidence and with legal representation in two of the other cases so as better to formulate his own views. He has been gracious enough to say that he adopts the analysis of the law and the practice in the other two cases heard before his and has nothing further to add.[4]The appeals are respectively from the ETs in different locations. The relevant provisions of the law in practice as set out in Muschett . Since then, the Court of Appeal has decided Jurkowska v Hlmad Ltd [2008] ICR 841 . I myself have decided a number of other cases, including Bost Logistics Ltd v Mr J Gumbley, Mr A Rowberry, Mr M Smith and Exel Europe Ltd [2008] UKEATPA/0013/08/JOJ, and the Court of Appeal has upheld my approach to the law and the practice on these appeals in Harper v Hopkins [2010] EWCA Civ 1246 .[5]The EAT Rules require a Notice of Appeal and all supporting documents as prescribed by the Practice Direction to be lodged within 42 days of the date the reasons are sent to the parties. The Practice Direction indicates what documents must be provided and the 2005 Practice Statement makes clear these are prescriptive. So far as is relevant to today's proceedings, the Practice Direction at paragraph 2.7 says:
"A party cannot reserve a right to amend, alter or add, to a Notice of Appeal. Any application to amend must be made as soon as practicable and be accompanied by a draft."
Where there are allegations relating to the procedure adopted at a Tribunal, Practice Direction paragraph 11 says that there must be proper particulars and full reasons given.[6]Paragraph 2.4 requires that:
"The Notice of Appeal must clearly identify the point(s) of law which form(s) the ground(s) of appeal from the judgment. It should also state the order the Appellant will ask the EAT to make."
[7]In all three cases the Registrar had submissions in writing and decided that the appeals were out of time and discretion would not lie.[8]I am expressly guided by the judgment in Muschett giving the illustrations of the circumstances in each of the cases. Together with the authorities which I cited, these are all cited by the Registrar in each of her Reasons. In addition, I pay attention to the judgment of the Court of Appeal in Peters v Sat Katar Co Ltd [2003] IRLR 574 , noting that it was because of the judgment of the court, particularly Peter Gibson LJ, that the Rules of the EAT and the Practice Directions were changed so that full information is given to potential litigants and, of course since then, there is a functioning website giving clear details. The facts in Mr Kapoor's Case[9]The Registrar decided that the appeal was properly lodged 32 days out of time. The Claimant had succeeded in the ET. The employers wished to appeal against that and lodged a Notice of Appeal, but withdrew it and received the Claimant's consent to do that during the course of the proceedings. The Claimant went onto a remedy hearing, where he was awarded £21,000 or so. At the time, and he was a litigant in person, he knew he wanted to appeal because he considered, as he told me this morning, he should have been awarded £1.75 million. So, from the moment that the Reasons were promulgated on 14 April 2010, he was alert to the prospect of appeal.[10]On about 26 April 2010, the Claimant was in the UK, until 28 May, which was the deadline for submitting a Notice of Appeal against the remedy judgment. He wrote to the EAT expressing dissatisfaction with the judgment of the ET on remedy on 25 April and said he was ready to file his Notice of Appeal within a fortnight. He did not.[11]On 17 May, he gave his consent to the withdrawal by the Respondent of its appeal and, on that basis, had to decide what to do. I accept that from the early stage of the six week period, the Claimant was concerned to file a Notice of Appeal. He told the EAT case manager that he would do so within a fortnight of 25 April, let us say 10 May. He told me that he was considering whether he should file a Notice of Appeal or a cross-appeal against the remedy judgment. I reject that approach to the law. Each judgment is separate. He has no objection to the liability judgment; he does object to the remedy judgment. Once the employer took steps to unpick the liability judgment, he could, of course, cross-appeal, but that debate was over once he gave his consent. On 17 May 2010, there was only the remedy judgment and only he objected to it, for as a matter of record, the Respondent did not appeal.[12]Given that from as early as 25 April, he knew he was going to appeal the substance of the remedy judgment, he did nothing until 28 May. On that day, shortly before 7.00am, he submitted his Notice of Appeal to the Respondent by email. He also sent a communication to the EAT, but it was never received here. The alarm bells should have been ringing because he is an experienced person in litigation and he expressly invited the EAT to acknowledge receipt of his Notice of Appeal:
"I am the Claimant in the above proceedings. Kindly confirm receipt of the same."
There was no receipt, for the EAT record shows nothing. The website invites people who submit documents by email to check that within 20 minutes they have been received. I do not accept his "facetious" (as it was put by Ms Reindorf, counsel for the Respondent in cross-examination) explanation that the EAT would not be open until 9.00am.[13]I do not accept the explanations given earlier in submissions to the Registrar about why he did not submit anything until 28 May. These were that he was in India; on cross-examination, he has conceded he was in England throughout the whole of the relevant period. He did at least have access to some sort of legal contact; whether it was formal advice or simply through a friend does not really matter. It is not true to say that he was simply on his own. When it comes to giving full, frank and truthful explanations, I am sceptical. He accepted he could walk to the EAT from his home in east London or could phone the case manager on the final day. There was not, as he asserted earlier, a single channel expeditiously and cost-effectively to deal with the EAT, i.e. by email. Alarm bells should have been ringing when he heard nothing.[14]The Notice of Appeal was out of time. It was submitted 32 days later. I do not accept his explanation for that either. He says that he thought the Respondent had 28 days because that is the period in the ET, but of course in the EAT, it is 14 days once the Notice has been sent. There are no reasons why I should take the exceptional step and exercise discretion in his favour. As Mummery LJ and other Judges have repeatedly said, those who leave to the very last minute the filing of a Notice of Appeal imperil their own future. If a Notice of Appeal is submitted earlier, some problems can be resolved.[15]As Mr Kapoor engagingly accepted in cross-examination, he is not a novice. He knows about time limits, he has lodged other claims. What he did wrong was to rely on his EAT email at 7.00am and to not do what he said he would do, which was to await a receipt. He could even then, as he put it, "walk the short distance into the City and file what was missing" or, alternatively, resend it. Actually, that is what he did 32 days later and it seemed to work then.[16]There are no grounds on which I should exercise discretion in his favour. The merits of the case are accepted by the Respondent to be of marginal value. I make no decision about the merits of this case. It has not been said by Ms Reindorf that this case has none so as to engage the judgment of Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111 . The facts in Ms Gavin's Case[17]Reference to Ms Gavin should begin with my judgment in respect of her application under rule 3(10) and should be read with this. Effectively, the Claimant had six claims. I dealt with four: one was dismissed on withdrawal and that left what is known as Claim 6. Claim 6 was submitted to the ET but was immediately met by a Respondent's notice. It is short. The material in this undoubtedly reflects the Claimant's continued insistence on litigating matters which courts had decided are long over.[18]During the course of the proceedings, I made allowance for Ms Gavin, who has legal qualifications and is on medication. I have read the medical report of Professor Hirsch. Her applications to adjourn today's hearing were refused first by the Deputy Registrar and then on further material by HHJ Peter Clark yesterday. Ms Gavin has appeared before me today to argue this matter. She did not renew the application. She has not been at any disadvantage in putting the case which she wants and she has given live evidence to me.[19]The Registrar decided that the grounds that had attached to her Notice of Appeal were inadequate. The sole document which was received at the EAT in relation to paragraph 7 of the grounds of the Notice on 18 February 2010, that is four days before the deadline, consist of this:
"I am a litigant in person. I am currently awaiting legal advice and will respond with full grounds of appeal at a later date. I ask for the Tribunal's forbearance. I believe that the Tribunal chair breached my rights to natural justice and/or (to be further expanded or added)."
There are then a few lines about documents.[20]The objection raised by the Respondents and observed by the Registrar is twofold. It is that the material here is not proper grounds and there is no right to add further material; see the Practice Direction which I cited above. The Registrar decided that the grounds of appeal which she sought to add to came on 6 April 2010 and it was debatable whether those grounds fulfilled the criteria. Full documentation, necessary to establish a properly constituted Notice of Appeal, arrived on 6 April 2010.[21]The Claimant points out that she was seeking legal advice. She acknowledged in cross-examination that she had access to legal advice and indeed she has provided to the EAT an extract from legal advice which she received. The Respondents accept that the Claimant has mental health problems but was able to relay in detail the circumstances of her case to Professor Hirsch, her consultant psychiatrist.[22]The Registrar decided that the material constitute grounds. I myself have doubts as to whether she was correct. There are grounds, they are jejune; they do not say what the minimum requirements require. However, the Reasons of this ET are thin too. They consist of the following:
"1. On 10th December 2009 the Tribunal gave the Claimant an opportunity to give written reasons, why the claim should not be struck out because it is scandalous or vexatious and has no reasonable prospect of success. 2. The Claimant has failed to give an acceptable reason why such an Order should not be made. The Tribunal therefore orders the claim to be struck out."
This was decided without a hearing. That is provided for under rule 18(7). There was no request for a hearing.[23]In order to understand whether the grounds of appeal constitute a proper appeal, it is necessary to look at what is said prior to these reasons. It is implicit that the Judge was accepting the submission made to the Tribunal by the Respondents in its response that this claim should be struck out.[24]The Claimant has provided an extract from the legal advice which gives some flesh to the documentation which was available at the ET. She served on the EAT a piece of legal advice she received on 27 June 2010 which sets out the necessary background. Her legal advisor wrote this:
"On 10 December 2009, the Tribunal sent the Claimant a strike-out warning. This said the judge was considering striking out the claim in its entirety because: (a) it was scandalous or vexatious; or (b) it had no reasonable prospect of success."
The letter went on to say that if the Claimant objected to the proposed strike-out, then she should provide her reasons in writing by 4.00pm on 4 January 2010. The Claimant wrote to the ET by letter dated 17 December 2009. The letter reasserts that the Claimant has a claim and wishes to preserve it, but does not give any specific reasons why the Tribunal should extend time for the Claimant to provide particulars of her application. The Claimant says at the end of this letter that she has requested data from the Respondents and they had 40 days in which to deal with this. In light of this request, she asked that time in which to provide reasons for the claim not to be struck out be extended. On 19 November 2009, she sent a discrimination questionnaire. This obviously predates the strike-out application.[25]In the light of the picture painted by that legal advice, the Claimant did not provide reasons why the claim should not be struck out as being scandalous, vexatious or having no reasonable prospect of success; nor did she seek an oral hearing. Thus, there was little for the Judge to do. In a subsequent application to add further grounds as to inadequate reasons, there is little more that could be said.[26]In my judgment, this Notice of Appeal did require grounds to be properly set out. There is a challenge to natural justice which means a challenge to the procedure adopted by the Judge on the papers and presumably to the operation of rule 18, which requires to be specified. The Claimant did not even then set out what her claim was so as to enable it to survive the strike-out. Thus, I can understand the paucity of the reasons. It does not, however, explain the paucity of the grounds. As is made clear in the Practice Direction, full grounds have to be given and reasons are clear from the previous judgment of Employment Judge Dimbylow, which I described as unimpeachable. In this case, the Claimant was obliged to give grounds. She left too late the application based upon her trying to obtain legal advice and failed to meet the requirements of the EAT Practice Direction. The Notice of Appeal is out of time and I see no exceptional reason to exercise discretion in her favour.[27]In this case, I do take the view, set out in Aziz , that this case is utterly hopeless. It is not in the interests of justice that life be breathed back into this very stale dispute for the reasons which I gave under rule 3(10). In the light of the extensive report of Professor Hirsch, it is not in the interests of the Claimant to have this meritless claim considered further. Professor Hirsch, at one stage, was indicating a delay of six months. In my judgment, legal not medical, there is no merit in continuing the agony for the Claimant and for the three Respondents in this case any longer than it has. This Notice of Appeal is dismissed. The facts in Mrs Shaw's Case[28]I turn, then, to Mrs Shaw's case. Mrs Shaw was the subject of a refusal by the Registrar to register her Notice of Appeal. Mrs Shaw has not attended today, but with the assistance of her daughter, has produced a 20-odd page submission to me which I have read most carefully. Mr and Mrs Upton, the Claimants in the proceedings, have been much vexed, they tell me. Mr Upton has come down from Cheadle Hulme, taking a day off from the business, in order to attend to try and beat off this appeal.[29]The appeal relates to Notices of Appeal sought to be lodged respectively 239 and 99 days out of time. The principal ground upon which the Respondent wishes to appeal is that she did not get the judgment and Reasons of the ET. It is bewildering why this did not occur; particularly as she says she applied for a review and the Registrar says it is difficult to understand how that could happen without her having the judgment. What the Registrar says is this:
"The Appellant applies for an extension of time in which to appeal the decision of the Employment Tribunal promulgated by letter on the 10 th September 2009 by which the Employment Judge dismissed the claim. The final date for appeal was the 22 nd October 2009. She also appeals the refusal to review that decision promulgated by a letter dated 28 th January 2010, the last day for appealing being the 11 th March. The appeals were received on the 18 th June 2010. She states that the reason for delay was that she did not receive the Judgment although she does not explain how she managed to request a review if that is the case and she does not explain when she did receive it. She apparently indicates that she did not receive the refusal to review of the 28 th January as well although it would appear to be a significant coincidence that both decisions failed to arrive. …. The Appellant has failed to address the reason for her late submission of appeal. She states that a "series of miscommunications" prevented her attending upon the hearing of her own Claim in the Employment Tribunal. She refers to "the confusion with regards to the procedures" in relation to the appeal process. It appears to be the case that any failure is attributed to others, the Employment Tribunal staff, the postal system, rather than to her own failure to ascertain procedure in a timely fashion. Although the Appellant is not represented, this true for many Appellants at this Court as legal assistance is rarely available. However, despite difficulties and even illness they manage to find out the time limits and to file their appeals in time. The Appellant as the Respondent points out is a successful businesswoman. Her three page final submission points to an able person of some acumen. As a businesswoman she is aware of the need for deadlines. She would have received at some stage a copy of the Judgment booklet which states "you should get your appeal to the EAT well before the end of the 42 day period"."
Mr Upton, in his brief submissions today, reminds me that the Respondent did not turn up to the case in which he and his wife were successful.[30]Even if it were accepted that (and I have no direct evidence from Mrs Shaw to this effect) she did not receive the judgment when it was sent, she knew there was something wrong. She applied to the Tribunal. The Tribunal indicated what steps were open to her in relation to a review, and she waited two months to do that. I do not accept that her appeal against the Registrar's Decision has any merit. In my judgment, the Registrar reached a correct decision.[31]I have looked most carefully at the written material she has provided. She had assistance from her daughter. As she says, she was prioritising other matters in her business. It was striking to the Registrar and to me that she is a businesswoman and she obviously has other things to do. But it was a matter of prioritising for her and she did not act quickly in relation to the matters she was required to deal with.[32]I see no reason to exercise discretion to breathe life into this appeal, which so far as I can tell, seems to have no merit as Mr Upton asked me to find. This appeal is dismissed as well.