MISS U RINIKER v CITY AND ISLINGTON COLLEGE CORPORATION [2010] UKEAT 0495_08_2306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0495_08_2306Case No Appeal No. UKEAT/0495/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS U RINIKERAPPELLANTCITY AND ISLINGTON COLLEGE CORPORATIONRESPONDENT
Before
His Honour Judge RichardsonDate 23 June 2010
[1]APPEARANCES For the Appellant MS URSULA RINIKER (The Appellant in Person) For the Respondents MISS LUCY McLYNN (Solicitor) Messrs Bates Wells & Braithwaite LLP Solicitors Scandinavian House 2-6 Cannon Street London EC4M 6YH SUMMARY PRACTICE AND PROCEDURE Striking-out/dismissal Time for appealing 1. Appeal by Claimant against a judgment confirming that her claim was struck out by reason of non-compliance with an "unless order". Appeal dismissed. There was no error of law in making the order. The Claimant's contention that the effect of applying to vary or discharge an "unless order" is to comply with the order is incorrect. Various other grounds of appeal rejected. 2. The Claimant has also sought leave to amend her Notice of Appeal to add an appeal against a judgment given dismissing her application for a review. This application was made notwithstanding that she had been refused an extension of time for appealing by the Registrar and that her appeal against that refusal had been dismissed. Application heard and dismissed by Registrar. Appeal dismissed. Held(1) it is the usual practice of the Appeal Tribunal to consider an original judgment and a review judgment as separate and to require a notice of appeal for each judgment or order.(2) Even if it is permissible to add an appeal against a different judgment or order by means of amendment, leave to amend ought only to be granted where in accordance with the Appeal Tribunal's usual practice an extension of time for appealing would be granted. HIS HONOUR JUDGE RICHARDSON This is an appeal by Mrs Ursula Riniker ("the Claimant") against a judgment of the Employment Tribunal (Employment Judge Postle) dated 18 June 2008 recording that her claim had been struck out by virtue of non compliance with an earlier order of the Tribunal. I will call this judgment "the original judgment".[2]Following the original judgment the Claimant applied for a review. The review was heard and dismissed by judgment of the Employment Tribunal (Employment Judge Postle again) dated 19 June 2009. I will call this judgment "the review judgment". In circumstances which I shall explain more fully later in this judgment the Claimant submitted a Notice of Appeal out of time against the review judgment. The Registrar of the Appeal Tribunal refused her application for an extension of time for appealing; and His Honour Judge Peter Clark dismissed her appeal on 4 March 2010.[3]Undaunted, the Claimant has sought now to amend her existing Notice of Appeal against the original judgment to encompass an appeal against the review judgment. She has renewed before me submissions made to Judge Clark challenging the practice of the Appeal Tribunal, which requires a separate Notice of Appeal against a review judgment; and she has found a recent decision of the Appeal Tribunal which (in her submission) supports her argument. The background facts[4]The Claimant was employed by City and Islington College Corporation ("the Respondents") as a teacher of German. She worked part-time. Her hours of teaching varied between 2 and 6 per week. She was employed in this way for many years until her dismissal by letter dated 2 March 2007 alleging gross misconduct.[5]On 2 June 2007 the Claimant commenced proceedings in the Employment Tribunal against the Respondents. Her claim form (the ET1) set out a variety of claims, including unfair dismissal, a claim for denial of pension rights said to amount to sex discrimination, breach of the Equal Pay Act 1970 and discrimination against her as a part-time worker, unpaid wages, victimisation by reason of "whistleblowing" and harassment.[6]On 28 February 2008 the Employment Tribunal heard a pre-hearing review to determine certain preliminary issues. The Tribunal determined in the Claimant's favour that her claim for unfair dismissal was in time, because the effective date of dismissal was 3 March 2007 when she received the letter of dismissal. The Tribunal held that there was no jurisdiction to entertain a claim for harassment under the Protection from Harassment Act 1997 . The Tribunal then held a case management discussion to get the proceedings ready for a full hearing which had already been listed for 7 July to 11 July 2008.[7]The Tribunal made various case management orders, subsequently sent out in writing on 11 March 2008, of which the following are important for the purposes of this appeal. I set them out as they appear in the order (there are typographical errors in it). "1. The Respondents shall disclose to the Claimant by no later than 28 March 2008 the contract of employment and relevant pay scale for a full-time male lecturer engaged in the Language department with the name of the lecturer deleted. 2. The Claimant is ordered to provide to the Respondent on or before the 4 April 2008 a schedule of loss setting out the losses flowing from the dismissal and, if after the disclosure of one above any alleged losses under the Equal Pay claim. 3. Each party shall prepare a list of documents that they consider relevant to the issues to be determined by the tribunal which they intend to rely upon at the full merits hearing and serve so as to arrive with the other party on or before the 18 April 2008. 7.2 It is ordered that witness statements be mutually exchanged so as to arrive on or before Friday 13 June 2008. 8. There will be should it be necessary a case management discussion on the 19 June commencing at 10.00am to last no longer than two hours in the event that there are matters outstanding with regard to compliance of the above orders to ensure the case is fully prepared and ready to proceed on the 7 July 2008. 8.1 In the event that both parties agree the case management discussion is not required as there has been proper and complete compliance with the above orders they are to notify the tribunal by midday on the 18 June at the latest to vacate the case management discussion."[8]The first order was directed to the Respondents. The Respondents disclosed what they described as their standard contract of employment for a full time lecturer and a series of pay scales. The Respondents said that they did not have a precise comparator for the Claimant.[9]The second order, for a schedule of loss, was directed to the Claimant. She protested that she could not comply, because the Respondents had not complied with the first order. On 2 May the Tribunal granted the Claimant an extension of time for compliance with this order until 14 days from the Respondents' compliance with the first order. The Respondents wrote to the Tribunal to say that they had complied with the first order as fully as they could.[10]The third order, for a list of documents, was directed to both parties. The Claimant did not comply with it.[11]On 12 May 2008 the Employment Judge wrote to the Claimant. He said:
"If you have not already done so you are to comply with the Order to file your list of documents. You do not need information from the respondent's representatives to do so. In so far as the schedule of loss, this can be filed now; even if it does not take account of the Equal Pay claim."
[12]The Claimant did not serve either a list of documents or even the limited schedule of loss envisaged by the Employment Judge. Following further correspondence the Employment Judge made an order of his own motion. This order I set out in full – "NOTICE OF ORDER Notice under rule 10(8) and/or 13 and/or 19 Employment Tribunal Rules of Procedure 2004 of an Order made by an Employment Judge under rule 10(2) and/or 13 and/or 18 On the initiative of Employment Judge Postle the following Order has been made. Under rule 12(2) any party affected by the Order may apply to have it varied or revoked. Such an application must be made before the date ordered for compliance, in writing to this office and must include reasons for the application. A party who is legally represented is required by Rule 11(4) to provide all the other parties in writing with the information there set out. ORDER So as to arrive on or before midday on 18 June 2008, the Claimant is to comply with paragraphs one, two and 7.2 of the Tribunal's Order dated 11 March 2008 CONSEQUENCES OF NON-COMPLIANCE AND TAKE NOTICE THAT unless this Order is complied with, the claim shall be struck out without further consideration of the proceedings or the giving of further notice or the holding of any hearing."[13]Two features of this order should immediately be noted.[14]Firstly, on any view the reference to paragraph 1 of the Order dated 11 March is misplaced. This was a requirement imposed upon the Respondents. I expect the Employment Judge intended to refer to paragraphs 2, 3 and 7.2 of the Order dated 11 March; but he did not in the event make any reference to paragraph 3.[15]Secondly, the order was not dated, and it was signed on behalf of the Regional Secretary, not by the Employment Judge himself. It stated on its face, however, that it was made "on the initiative of Employment Judge Postle" and it was in fact received by the Claimant on Saturday 14 June 2008.[16]The Claimant did not serve a schedule of loss or any witness statement. Nor did she serve a list of documents. She did however write to the Tribunal and to the Respondents' solicitors on 16 June 2008. This letter runs to six pages of typescript; I will not attempt to do more than summarise it. She applied for the order to be varied. She said that the order was irregularly made, manifestly unfair and prejudicial, and perverse. I will not set out the contents of her criticisms in full; they are to a significant extent renewed on this appeal and I will have to consider them in this judgment. She also applied for further directions, including in effect an extension of time for service of witness statements until 25 June.[17]The Claimant's letter dated 16 June did not arrive with the Tribunal prior to midday on 18 June. The copy which she sent to the Respondents' solicitors did arrive – but (say the Respondents) without a stamp.[18]It was, accordingly, the Respondents' solicitors who drew the letter to the attention of the Employment Judge in the afternoon of 18 June. After reading the letter the Employment Judge signed the judgment which is the subject matter of this appeal. It was sent to the parties on 19 June. It reads:
"The Tribunal – having made an order requiring the claimant to provide certain information by midday on 18 June 2008 – which order contained a warning that in the event that the information was not supplied the claim would be struck out without further consideration of the proceedings or the giving of further notice or the holding of any hearing, and – noting that the specified date has passed without compliance with the order or any request for an extension of time, now records that the claim has been struck out."
[19]The Employment Judge gave brief reasons for this judgment. He said – "1. By midday on 18 June the Claimant had not complied with the Order. 2. At 17.08 the Tribunal received a facsimile letter from the Respondent enclosing a letter from the Claimant applying to vary the order. The application did not contain a request for an extension of time. 3. In the circumstances I considered the application to vary the Order. 4. The Claimant objects that the Order is irregularly made because it was undated. There is no requirement for an Order to be dated. It was made on the 13 June 2008 and signed by the Judge, and in accordance with rule 10(8) it was sent to the parties by the secretary as soon as reasonably practicable. 5. The Claimant objects that the time for compliance was too short. The Order was made because the Claimant had failed to comply with previous Orders in similar terms for which ample time had been allowed. 6. The Claimant complains the Order is perverse because it requires her to comply with paragraph 1 of the previous Order which was in fact an Order against the Respondent. In those circumstances that part of the Order, made in error, could not require compliance by the Claimant and she was not, therefore, under an obligation to comply with that part of it. The Order was therefore not perverse. 7. The remainder of the application is an application for different Orders described by the Claimant as a variation. I have considered these. This does not excuse the Claimant's failure to comply. 8. In the circumstances I decided that it was appropriate to confirm the Order that the claim was struck out."[20]This, as I have said, is the judgment which is the subject matter of this appeal. I will deal later with the subsequent history. Statutory provisions relating to "unless orders"[21]It is convenient at this point to refer to the statutory provisions governing the making of unless orders. These provisions are found in the Employment Tribunal Rules, which are Schedule 1 to the Employment Tribunals (Constitution and Rules) Regulations 2004 .[22]The Employment Tribunal Rules are to be construed in accordance with the overriding objective set out in reg 3(1) and (2) of the 2004 Regulations: see reg 3(3). Reg 3(1) and (2) provide:
"(1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and Employment Judges to deal with cases justly. (2) Dealing with a case justly includes, so far as practicable:-- (a) ensuring that the parties are on an equal footing; (b) dealing with the case in ways which are proportionate to the complexity or importance of the issues; (c) ensuring that it is dealt with expeditiously and fairly; and (d) saving expense."
[23]Rule 10 empowers an Employment Judge to make case management orders. So far as material to this case, rule 10 provides as follows. "(1) Subject to the following rules, the Employment Judge may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of an Employment Judge considering the papers before him in the absence of the parties, or at a hearing (see regulation 2 for the definition of 'hearing'). (2) Examples of orders which may be made under paragraph (1) are orders--(a) as to the manner in which the proceedings are to be conducted, including any time limit to be observed;(b) that a party provide additional information; . ....... (d) requiring any person in Great Britain to disclose documents or information to a party or to allow a party to inspect such material as might be ordered by a County Court (or in Scotland, by a sheriff); (e) extending any time limit, whether or not expired (subject to rules 4(4), 11(2), 25(5), 30(5), 33(1), 35(1), 38(7) and 42(5) of this Schedule, and to rule 3(4) of Schedule 2); . ....... (n) varying or revoking other orders; . ..... (s) that a witness statement be prepared or exchanged; or (3) An order may specify the time at or within which and the place at which any act is required to be done. An order may also impose conditions and it shall inform the parties of the potential consequences of non-compliance set out in rule 13. (4) When a requirement has been imposed under paragraph (1) the person subject to the requirement may make an application under rule 11 (applications in proceedings) for the order to be varied or revoked. . ..... (8) Any order made under this rule shall be recorded in writing and signed by the Employment Judge and the Secretary shall [except where the order is for a witness order described in rule 10(2)(c) only] inform all parties to the proceedings of any order made as soon as is reasonably practicable."[24]Rule 11 makes provision for applications by the parties. Rule 11(1) makes specific reference to applications to vary existing orders:
"(1) At any stage of the proceedings a party may apply for an order to be issued, varied or revoked or for a case management discussion or pre-hearing review to be held."
[25]Rule 12 makes provision for Employment Judges to act of their own initiative. "(1) Subject to paragraph (2) and to rules 10(7) and 18(7), an Employment Judge may make an order on his own initiative with or without hearing the parties or giving them an opportunity to make written or oral representations. He may also decide to hold a case management discussion or pre-hearing review on his own initiative. (2) Where an Employment Judge makes an order without giving the parties the opportunity to make representations--(a) the Secretary must send to the party affected by such order a copy of the order and a statement explaining the right to make an application under sub-paragraph (2)(b); and(b) a party affected by the order may apply to have it varied or revoked. (3) An application under sub-paragraph (2)(b) must (subject to rule 10(2)(e)) be made before the time at which, or the expiry of the period within which, the order was to be complied with. Such an application must (unless an Employment Judge orders otherwise) be made in writing to an Employment Tribunal Office and it must include the reasons for the application. Paragraphs (4) and (5) of rule 11 apply in relation to informing the other parties of the application."[26]Rule 13 is concerned with the Tribunal's power to secure compliance with orders and practice directions. So far as material it provides:
"(1) If a party does not comply with an order made under these rules, under rule 8 of Schedule 3, rule 7 of Schedule 4 or a practice direction, an Employment Judge or tribunal-- (a) may make an order in respect of costs or preparation time under rules 38 to 46; or (b) may (subject to paragraph (2) and rule 19) at a pre-hearing review or a Hearing make an order to strike out the whole or part of the claim or, as the case may be, the response and, where appropriate, order that a respondent be debarred from responding to the claim altogether. (2) An order may also provide that unless the order is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or Hearing. (3) Employment Judges and tribunals shall comply with any practice directions issued under regulation 13."
[27]An order of the kind mentioned in rule 13(2) is commonly known as an "unless order"; and I shall adopt that description in this judgment.[28]The types of hearing which a Tribunal may conduct include a case management discussion and a pre-hearing review. Rule 18 is concerned with pre-hearing reviews. The orders which may be made on a pre-hearing review include an order striking out a claim for non-compliance with an[29]Rule 19(1) provides:
"(1) Before an Employment Judge or a tribunal makes a judgment or order described in rule 18(7), except where the order is one described in rule 13(2) or it is a temporary restricted reporting order made in accordance with rule 50, the Secretary shall send notice to the party against whom it is proposed that the order or judgment should be made. The notice shall inform him of the order or judgment to be considered and give him the opportunity to give reasons why the order or judgment should not be made. This paragraph shall not be taken to require the Secretary to send such notice to that party if that party has been given an opportunity to give reasons orally to the Employment Judge or the tribunal as to why the order should not be made."
The appeal against the original judgment[30]I will first deal with the Claimant's submissions concerning the original judgment. The order in which I deal with her submissions is my own. The submission which the Claimant pressed most strongly in oral argument was the third.[31]Firstly, she submitted that the original judgment was not authorised by rule 13 of the Employment Tribunal Rules, or by any other provision. She submitted that the Employment Tribunal Rules envisaged that an order striking out an application should only be made at a hearing: see, in particular, rule 13(1), 18(7) and (8). Rule 13(2) should be read subject to these requirements. It was contrary to her fundamental right to a hearing to make the order without first holding such a hearing; see article 6(1) of the European Convention on Human Rights .[32]I reject this submission. An order which strikes out a claim for non-compliance with an order with immediate effect must be made at a hearing after notice has been given: see rule 13(1), rule 18(6) and rule 19(1). But the Rules expressly make provision for an "unless order" to be made without a hearing: see rules 13(1)-(2) and rule 19(1). I do not accept that the making of such an order without a hearing is contrary to any fundamental human right. A party made subject to such an order may apply to vary it or extend time for compliance with it. If the order takes effect, the party may apply to review it, as indeed the Claimant did in these proceedings.[33]Secondly, she submitted that the "unless order" was invalid, because the copy which was sent to her was not signed by the Employment Judge. This, she submitted, was an essential requirement, imposed by rule 10(8) of the Employment Tribunal Rules. Therefore, she submitted, it was wrong to give judgment in reliance on it.[34]I reject this submission. Rule 10(8) requires that the Employment Judge should sign any case management order made and that the parties should be informed of the order as soon as reasonably practicable. It does not require that a signed copy be served on the parties.[35]Thirdly, she submitted that she complied with the "unless order" by applying, prior to the deadline set out in the order, to vary or revoke it. This was perhaps the Claimant's main submission. She argued that an "unless order" made without a hearing effectively gave the person to whom it was addressed two means of compliance. Either the order could be obeyed; or an application could be made within the time limit to vary or revoke the order. If such an application were made, the "unless order" would not take effect; the application to vary would have to be determined by a tribunal; if the application failed a fresh "unless order" would have to be made at the hearing.[36]She sought to draw comfort from the Employment Appeal Tribunal's own Practice Direction (2008) at paragraph 9.2 which, she said, bore the meaning for which she contended. Paragraph 9.2 provides:
"An order made will contain a time for compliance, which must be observed or be the subject of an application by any party to vary or discharge it, or to seek an extension of time. Otherwise, failure to comply with an order in time or at all may result in the EAT exercising its power under Rule 26 to strike out the appeal, cross-appeal or respondent's Answer or debar the party from taking any further part in the proceedings or to make any other order it thinks fit, including an award of costs."
[37]Further, she relied on a dictum of Rimer J (as he then was) in Maresca v Motor Insurance Repair Research Centre [2005] ICR 197 at para. 25 to the effect that if a party did not consider that an "unless" order was properly made it was open to that party to apply for its variation or discharge.[38]I reject the Claimant's submission. Rule 13(2) empowers the Tribunal to make an order specifying that a claim or response will be automatically struck out in default of compliance "on the date of non-compliance". This is a salutary power, given to ensure that orders are complied with. A party who is directed by an "unless order" to comply cannot avoid the consequences of disobedience merely by making an application to vary or discharge (or to extend time). A party who chooses not to comply with the order but to rely on an application to vary or discharge the order (or to extend time) does so at risk that the order will take effect.[39]To my mind this interpretation of rule 13(2) accords with its natural meaning and furthers the overriding objective set out in reg 3 of the 2004 Regulations. It is part of the duty of employment tribunals to ensure, so far as practicable, that a case is dealt with expeditiously and fairly: reg 3(2). This duty cannot be performed without a power to impose sanctions which take effect upon non-compliance. If the sanction could be avoided merely by making an application to vary, discharge or extend time the power in rule 13(2) would be deprived of its usefulness and would be an encouragement to further interlocutory skirmishing rather than progress in litigation.[40]I do not think that the Claimant's submissions are supported by the Appeal Tribunal's Practice Direction or by the dictum of Rimer J in Maresca . These point out that there is a right to apply to vary or discharge an "unless order". They do not deal expressly with the position of a party who fails to comply with an order.[41]The Tribunal retains ample power to do justice if it transpires that the unless order ought to be varied or discharged; or if the party subject to it ought to be relieved from the sanction contained within it. The mechanisms available for this purpose under the Rules have been discussed in other authorities, pursuant to which the Employment Judge in this case held a review and delivered the review judgment. But the starting point, as I have said, is that an order pursuant to rule 13(2) takes effect upon non compliance.[42]Finally, I should say that the Claimant also submitted that the "unless order" itself ought not to have been made; it was insufficiently certain to be complied with; the time limit for compliance was unreasonably short; and the order was inappropriate in the light of earlier and continuing non compliance by the Respondents.[43]The appeal in this case is against the judgment dated 18 June rather than against the underlying unless order; but as his judgment demonstrates the Employment Judge considered the Claimant's application to vary or discharge before he confirmed the judgment, and his consideration formed part of his reasons for the judgment.[44]I can detect no error of law in the making of the "unless order" or in the Employment Judge's rejection of the application to vary or discharge it. It is true that a case management discussion had been set for 19 June in case there was non-compliance with earlier orders. That was itself an exceptional course, though it was appropriate given the broad range of the Claimant's claims. But the case management discussion was no doubt set in the expectation that, prior to 19 June, there would have been substantial progress in preparation. On 13 June the Employment Judge was faced with circumstances where there had been no progress at all. The Claimant had served no list of documents; she had not served any schedule of loss despite the advice given to her in the Employment Judge's letter dated 12 May; and she did not serve a witness statement by 13 June (if the Employment Judge did not know that when he made the order, he rightly concluded that it was bound to be the case). In those circumstances the Employment Judge committed no error of law in issuing an unless order; he was fully entitled to do so. The Claimant would have been wise to obey it. She complains that time was short; but the Employment Judge was entitled to impose a short time scale if the case management discussion was to have any value at all. The review judgment and the Claimant's attempts to appeal[45]As I have already explained, the Claimant applied for a review of the original judgment. This application was heard on 29 March 2009. The Employment Judge reserved judgment and gave full reasons for refusing the application and confirming that the claim was struck out. The review judgment was sent to the parties on 19 June 2009.[46]While the Claimant's application for a review was being considered by the Employment Judge, her appeal against the original judgment dated 18 June 2008 stood in abeyance. Following receipt of the review judgment the Appeal Tribunal wrote to her to ask if she wished the appeal to proceed. By letter dated 5 July 2009 she stated that she did. That letter also set out criticisms of the review judgment. She did not, however, present any Notice of Appeal against the review judgment.[47]On 23 September 2009 a preliminary hearing took place in respect of this appeal. At that hearing His Honour Judge Ansell made it clear to the Claimant that the appeal concerned the original judgment, not the review judgment.[48]On 30 September 2009 the Claimant then applied to the Registrar asking the Appeal Tribunal to do one of three things: to treat her submissions on 5 July as an amendment of or addition to her Notice of Appeal; to treat those submissions as a separate appeal made in time; or to extend time to lodge a new appeal. The Deputy Registrar told her by letter dated 9 October that the appropriate course, if she wished to appeal the review judgment, was to apply to do so out of time; and directed her to the appropriate passages in the Appeal Tribunal's Practice Direction.[49]The Claimant then lodged a Notice of Appeal dated 21 October 2009 against the review judgment, and applied for an extension of time for appealing. On 4 February 2010 her application was refused by the Registrar. On 4 March 2010 her appeal against that refusal was dismissed by HJJ Peter Clark.[50]In his judgment HHJ Clark addressed a submission by the Claimant that an appeal against a judgment on review was encompassed within the appeal against the original judgment, at least where the review affirms the original order or judgment. She said that if the Appeal Tribunal's practice was different, it was both wrong and unclear to litigants. She relied on Maresca .[51]The conclusions of HHJ Clark's appear from four passages in his judgment:
"14. Like HHJ Ansell it has always been my understanding, as a matter of practice, that each separate judgment or order of an Employment Appeal Tribunal must be appealed by a Notice lodged within 42 days of the promulgation date of the individual judgment or order. ..... 15. Rule 3(3) of the Employment Appeal Tribunal Rules deals with time for appealing judgments and orders of the Employment Tribunal. I see no warrant for suggesting, within that rule, that the time limit of 42 days can be circumvented simply by a timeous appeal against an earlier judgment or order ..... 17. ....... even if it were possible to allow an amendment to add a later decision to the original appeal I would not do so in circumstances where the Respondent would be deprived of the opportunity to rely on the appeal against the review decision being out of time. Fairness must extend to both parties. 19. In these circumstances I affirm the settled practice in the Employment Appeal Tribunal. A fresh Employment Tribunal judgment or order post-dating an earlier Notice of Appeal against a previous judgment or order will require a fresh Notice of Appeal within the 42 day time limit."
[52]He considered Maresca . In that case the Employment Tribunal's substantive decision had been on 14 January 2003; the review decision had been on 20 January; a Notice of Appeal had been presented against the substantive decision on 21 February; and an application to amend the Notice of Appeal to add an appeal against the review decision was made on 11 April. At the full hearing Rimer J considered the appeal against both the substantive and review decisions. Therefore, as HHJ Clark observed, it would appear that the amendment must have been allowed. He did not regard Maresca as authority binding upon him or as representing the Appeal Tribunal's usual practice. In any event, he pointed out that the circumstances in Maresca were unusual; the effect of the amendment was "simply to bring the review decision into play by reference to an in time notice" (paragraph 17).[53]After considering all the circumstances HHJ Clark found that there were no grounds for granting an extension of time for appealing. Then, however, the Claimant wrote to the Registrar seeking permission to amend the existing Notice of Appeal against the original judgment to encompass the review judgment. The Registrar refused that application. The Claimant immediately appealed. I heard her interlocutory appeal at the same time as the appeal against the original judgment.[54]In support of her interlocutory appeal the Claimant renewed the submissions which she made to HHJ Clark. She submitted that it was permissible to amend the Notice of Appeal against the original judgment so as to appeal against the review judgment; and that permission to appeal ought to be granted.[55]In the course of argument I said that I thought I had recently heard a case where some consideration had been given to the same point. The Claimant's interlocutory appeal had arisen at short notice, and I was unable to identify the case. I reserved judgment. The Claimant identified the case shortly afterwards and made written submissions to me concerning it – Opara v Partnership in Care Ltd [2010] UKEAT/368/09 (15 February 2010).[56]In that case, as in the present case, the Tribunal issued a judgment confirming that a claim was struck out by reason of non compliance with an "unless order"; the claimant both appealed the original order and applied for a review; and the application for a review was subsequently dismissed. In that case, however, after the review was determined the Appeal Tribunal gave a further direction requiring the Tribunal to provide its reasons and directing the claimant to "lodge draft amended grounds in the light of these reasons". The claimant duly lodged amended grounds. The appeal was set down for a preliminary hearing and then for a full hearing on the amended grounds.[57]Considering this procedure to be anomalous, I raised it at the full hearing. What transpired is recorded in paragraph 25 of the judgment:
"This leads to one further feature of the appeal which we must mention. The focus of the Appeal Tribunal, in its successive interlocutory orders since June and in the comments made at the preliminary hearing, has been on the validity of the decision dated 1 May refusing relief against sanction. The focus of the parties, in submissions for both the preliminary hearing and this full hearing, has similarly been on the decision dated 1 May. At present, however, the appeal is against the order dated 9 December 2008, the correctness of which is not really challenged, rather than the order dated 1 May. We pointed this matter out to the parties. Without objection from the parties, we have treated the appeal as an appeal against the order dated 1 May, granting an extension of time for those purposes and treating the grounds and skeleton arguments as dealing also with an appeal against the order dated 1 May."
[58]Understandably, the Claimant has submitted that this case supports her contentions and justifies her in saying that there is no legal requirement or settled practice preventing an appeal relating to a review judgment being heard by way of amendment to a notice of appeal concerning an original judgment.[59]I find myself, however, in agreement with the judgment of HHJ Clark which I have quoted. As paragraph 25 of the judgment in Opara shows, I considered the practice adopted in that case to be anomalous. I did not consider it appropriate to use the existing Notice of Appeal as a vehicle for appealing against the review judgment; and I did not consider that amendment of the existing Notice of Appeal against the original judgment obviated the need for an appeal against the review judgment and an extension of time for appealing. In the particular circumstances of that case, where the appeal was ready to proceed that day and there was no objection from either party, I was prepared to grant an extension of time and dispense with formalities. .[60]My conclusions are as follows. Firstly, in agreement with HHJ Clark I consider that the starting point is rule 3(3) of the Employment Appeal Tribunal Rules 1993 . An appeal must be brought within a specified time of the judgment or order under appeal. The Appeal Tribunal has power to grant an extension of time for appealing, but the practice is strict: see United Arab Emirates v Abdelghafar and anr [1995] ICR 65 as approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111 and recently explained and discussed further in Jurkowska v Hlmad [2008] IRLR 430 . It is therefore always necessary for the Appeal Tribunal to scrutinise a notice of appeal to see whether it is in time; and if it is not an application for an extension will be required.[61]Secondly, in agreement with HHJ Ansell QC, HHJ Clark and the Registrar I consider that the usual practice has been to treat an original judgment and a review judgment as separate and to require a notice of appeal for each judgment or order. It is not the normal practice to entertain an application to amend an existing notice of appeal in order to appeal against a different order. The Deputy Registrar's letter dated 9 October was in accordance with the Appeal Tribunal's usual practice. An appellant wishing to appeal against a review judgment should submit a Notice of Appeal against the review judgment within the time limit.[62]Thirdly, in agreement with HHJ Clark, even if it is permissible to add an appeal against a different judgment or order by means of amending an existing Notice of Appeal, leave to amend ought only to be granted where in accordance with the Appeal Tribunal's usual practice an extension of time for appealing would be granted.[63]Fourthly, I cannot envisage any circumstances in which an appellant who has been refused an extension of time for appealing will subsequently be granted leave to amend an existing notice of appeal so as to appeal the very same order or judgment. The appellant's remedy, if refused an extension of time for appealing, is to appeal against that refusal – if there are any grounds for doing so. A subsequent application to amend an existing notice of appeal cannot be used to re-litigate what is in essence the same issue. This last conclusion is sufficient on its own to dispose of the Claimant's application in this case.[64]I would add, finally, that the Claimant addressed me on the legal merits of her proposed appeal against the review judgment. As I understood her, she told me that her principal argument before the Employment Judge was that she complied with the "unless order" by applying, prior to the deadline set out in the order, to vary or revoke it: see, indeed, paragraphs 21 and 31 of the review judgment. Her principal complaint on appeal was that he rejected this argument; and she was concerned that the judgment "confirming" the strike out order of 18 June 2008 might stand as a further judgment on the same point. As I have said, the Claimant's argument that she had complied with the unless order is not sound. If it had been sound, however, the review judgment would not have prejudiced her; for if the original judgment had been set aside the review judgment would have fallen with it.

order

see rule 18(7)(e). But rule 18(6) provides: "(6) Before a judgment or order listed in paragraph (7) is made, notice must be given in accordance with rule 19. The judgments or [orders] listed in paragraph (7) must be made at a pre-hearing review or a Hearing if one of the parties has so requested. If no such request has been made such judgments or [orders] may be made in the absence of the parties."

Cited in 3 later judgments