Booley v British Army MOD (Practice and Procedure : Time for appealing) [2012] UKEAT 1821_11_1907

EAT
Booley v British Army MOD (Practice and Procedure : Time for appealing)
[2012] UKEAT 1821_11_1907 · 2012-07-19
[1]I gave oral self-directions at the outset of today’s list of out of time appeals. Each is an appeal by the Claimant in proceedings against decisions of Employment Tribunals rejecting the cases they were putting forward. Each case was the subject of a direction by the Registrar that the appeal was properly instituted out of time and she refused to extend time. The legislation[2]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 Judgment or reasons for it being sent to the parties. The Practice Direction and the Practice Statement 2005 made clear that these are prescriptive provisions and there is no special treatment of self-represented parties. An appeal lies to a Judge from the Registrar; in effect it is a fresh hearing, sometimes with live evidence. I make up my own mind on the basis of all the material.[3]I have read the material each of the parties in the two cases has put before me. In Mr Booley’s case, no point was taken as to the facts he put forward and Miss Bell who appeared for the Ministry of Defence did not seek to challenge his factual evidence, and in respect of Ms King’s case I have read the material, and she not appearing, I heard no live evidence. The relevant provisions of law and practice are set out in my Judgment in Muschett v London Borough of Hounslow [2009] ICR 424 . Since then, the Court of Appeal has decided Jurkowska v Hlmad [2008] ICR 841 . See also my Judgment in Westmoreland v Renault UK Limited UKEATPA/1571.[4]The problems faced by the EAT, with hundreds of potential appellants failing to follow the rules, were set out in my Judgment in Miller v Lambeth Primary Care Trust UKEATPA/0943/10, which was approved in terms: [2011] ECWA Civ 722. In Zinda v Barn Elms [2011] EWCA Civ 691 the Court of Appeal again expressly approved my approach in those early cases, Rimer LJ saying the following:
“45. There is no need for extensive reference to the reported authorities relating to extensions of time for filing Notices of Appeal in the Appeal Tribunal. The essence of the principle is, I consider, sufficiently summarised in Paragraphs 3 to 7 of my Judgment in Jurkowska v Hlmad [2008] ICR 841 to which HHJ McMullen QC referred. That shows that the time limits are expected to be observed and that the Rules are the same for those acting in person as for those professionally represented. The Rules, said Mummery MJ as he then was, in United Arab Emirates v Abdelghafar [1995] IRLR 243 will therefore only be relaxed in rare and exception cases where the Tribunal is satisfied that there is a reason which justifies departure from the time limits laid down by the Rules. Acceptable excuses do not include ignorance of the time limits or oversight of the passing of the time limit, for example by a solicitor under pressure of work. While the merits of the appeal may be relevant, they are usually a little late since it is not appropriate on an Application for Leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal Abdelghafar (Para 29)”
Mr Booley’s case[5]In Mr Booley’s case the Registrar decided the following:
“The Notice of Appeal has been lodged 326 days out of time and by virtue of Rule 3 of the Employment Appeal Tribunal Rules 1993 as amended 2004 it is 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 reasons for the judgment or an order of a tribunal were sent to the parties. The appellant seeks to appeal a decision promulgated on the 26 th November 2010. The last day for appeal was the 7 th January 2011. The appellant lodged a Notice of Appeal on the 29 th November 2011. The employment judge rejected his claim on jurisdictional grounds as he was a member of the armed forces. He now makes an application for an extension of time on the basis that the employment judge was wrong to do so and that he has found out ‘there have been several other military cases heard at civil employment tribunals’. He does not say what these cases are or why they rendered the judge’s decision wrong. His Notice of Appeal does not reveal any alleged legal error and simply seeks to reiterate his original complaint against the British Army. The appellant acts for himself but so do many in this court with fewer advantages than the appellant. The decision was made and he had a generous amount of time in which to challenge it. The fact sheet accompanying the decision informed him of the existence of the EAT and the time limit if he disagreed with the decision. He could have taken legal advice. He could have researched the law. There comes a time when litigation must be final and there would have to be a very compelling reason indeed to allow a challenge in respect of a decision where such a substantial period of time has elapsed. It appears that the appellant did nothing for a substantial period of time and now seeks to act even though he has put forward no basis on which he can act. I see no compelling reason to set aside the public interest factor and extend time.”
[6]The Claimant was unhappy with that and therefore appealed. His case could not be simpler; he was a senior non-commissioned officer in the Paratroopers. He has a conspicuously distinguished service record including his selection uniquely in the history of the armed services to train a member of the Royal Family, Prince Harry. He was a pilot instructor. He became dissatisfied with his lot and decided that he would resign. In about ten utterances I have seen he expresses his dissatisfaction as being forced out of the armed service. In the language of our particular trade, it is called constructive dismissal.[7]He also alleges the Army failed to comply with the contractual rights which he said he had, and so he left. He raised internally a service complaint which is the way in which a serving member of the forces may complain. He had been wronged and sought redress and he expressly said constructive dismissal was the reason, which he has said throughout.[8]He has more recently indicated that he suffered from harassment and bullying. The Employment Tribunal rejected the claim on the grounds that it had no jurisdiction to deal with the claim of unfair dismissal or breach contract from a member of the armed services. This is a reference to sections 191 and 192 of the Employment Rights Act 1996 (as in force at all material times by way of Sch 2 para 16):
“191 Crown employment (1) Subject to sections 192 and 193, the provisions of this Act to which this section applies have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other employees or workers. (2) This section applies to– … (e) Part X, apart from section 101 192 Armed forces (1) Section 191– (a) does not apply to service as a member of the naval, military or air forces of the Crown …”
[9]The Claimant’s appeal, therefore, is against the exclusion of him from the seat of justice. He tells me he has pursued the internal machinery available to him; he has failed. He is now appealing but he has a number of criticisms about the process which he has been through and is facing, and so seeks in the simplest terms a hearing before an independent body which he designates as the Employment Tribunal so that he can put his case.[10]The Claimant has had the benefit of very substantial legal advice exhibited in the papers, which I hold to be thorough and correct. He has taken his problem to a number of sources of advice. Everywhere he goes they tell him the same thing, he is not entitled to bring a claim to an Employment Tribunal. He accepted that advice until he ran into somebody who said there are armed forces personnel who have had access to a tribunal and have won. And so he immediately got cracking on the internet and using the register of tribunal judgments at Bury St Edmunds he has put before me the three cases which inspired his appeal.[11]They are stunning examples of armed forces personnel appearing at Employment Tribunals. What is significant is that they are all women and they all rely upon an infringement of their rights based upon their respective protected characteristics; that is being a woman, being a part-time worker and/or being a lesbian. Miss Bell recognises that those are ways into an Employment Tribunal. Indeed that was achieved as long ago as the early 1990’s when hundreds of service personnel brought claims in Employment Tribunals based upon sex discrimination and pregnancy discrimination and (both men and women) discrimination on the ground of sexual orientation. Conclusion[12]That was pointed out to him in writing by his solicitor. As no doubt has been explained to Mr Booley, that is the distinction and so I look carefully at whether he is raising such a claim. There is no reference to any protected characteristic. Having heard Miss Bell this morning, he says that he complains of harassment and bullying; no doubt he does, but that is not an abstract term, it has to be related under the Equality Act 2010 to be a protected characteristic. There is nothing in the claim form or in the documents that might support it, such as the internal complaint, to indicate an infringement of the Claimant’s rights under the Equality Act by reason of any protected characteristic he might have.[13]Applying the simple rules which I have set out above, the Claimant’s appeal is very substantially out of time, there is no dispute about that. The explanation for it is that he was given correct advice and suddenly found that the advice might be incorrect, and on that basis raises this appeal. I am afraid the answer is as simple as the point which was made: the advice he was given was correct. Merely finding more cases on the internet is not a basis upon which the exceptional step should be taken to exercise discretion in his favour.[14]I assume the Human Rights Act challenge is resolved by the existence of the service complaints procedure, but I have heard no argument on it.[15]In the passage from Rimer LJ, which I cited above, there is reference to the merits of the case. Miss Bell says this is a case which is exceptional and I should pay attention to the merits. That is Sir Christopher Staughton’s approach in Aziz v Bethanal Green City Challenge Co Ltd [2000] IRLR 111 ; where the case is hopeless there is no point in breathing life into it. In my judgment this is such a case, the law could not be clearer. Mr Booley does not have a right to bring a claim of unfair constructive dismissal and breach of contract in the Employment Tribunal. If I were to allow the appeal against the Registrar’s order this would be sifted out by a Judge under rule 3(7).[16]It is doomed to failure; I see no point in raising the Claimant’s hopes. The jurisdiction of the Employment Tribunal is controlled by statute. Sections 191 and 192 make clear that he has no right to attend at an Employment Tribunal and so the appeal is dismissed.