The claimant lost his case at the Employment Tribunal and appealed. However, his appeal was lodged out of time and permission to extend time was refused on the basis that the delay was not excusable. The claimant contended that he had in fact submitted his appeal in time: the EAT did have evidence of an item that had been posted to them but it had inadequate postage so was not delivered. The properly constituted Notice of Appeal was not received by the EAT until 98 days after the deadline. The claimant claimed that he had done what was reasonably practicable to comply with the rules and said that it would be unjust and inequitable not to allow an extension of time.

The EAT disagreed with the claimant; a failure to produce material with the proper postage is not an excusable failure and the delay was very substantial. The appeal was dismissed.

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Appeal No. UKEATPA/1245/10/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 March 2011

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MR S LEIRA (APPELLANT)

MINISTRY OF JUSTICE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
Written Submissions

For the Respondent
MR JAMES PURNELL (of Counsel)
Instructed by:
The Treasury Solicitor's Department
9th Floor, Zone 11
One Kemble Street
London
WC2B 4TS

PRACTICE AND PROCEDURE – Time for appealing

The Claimant lodged a Notice of Appeal 98 days out of time for he went to the Employment Tribunal and then put insufficient postage on it. Extension of time was refused.

1. This is an appeal from the decision of the Registrar not to allow the registration of a Notice of Appeal sought to be lodged by the Appellant. I will refer to the parties as the Claimant and the Respondent.

1. The case was listed for 10.30am and called on and the Claimant was not in attendance. Another case was taken. At 11.40am the case was called on, a call was made to the Claimant's mobile; there is no trace of him. Mr Purnell, counsel for the Respondent, tells me that from his experience of the Claimant this is out of character for he is punctilious and he has shown that apart from today the Claimant has been demonstrating that he is progressing the proceedings. He asks me to go ahead.

1. The appeal itself is against the judgment of an Employment Tribunal chaired by Employment Judge Manley sitting over six days at Watford, registered with Reasons on 15 June following a judgment sent on 14 May 2010. The Claimant represented himself and Mr Purnell the Respondent. There was no case to answer in respect of the Claimant's claims about the refusal of the Respondent to investigate his whistle-blowing and in respect of personal effects and they were struck out after the Claimant had given evidence about them. The remaining claims of race discrimination and so on under the 1976 Act were dismissed. This was a full hearing.

1. The Claimant was dissatisfied and sought to appeal; the Registrar decided that the Notice of Appeal was out of time and she would not extend time in the exercise of her discretion.

1. The relevant provisions of law and practice are set out in my judgment in Muschett v London Borough of Hounslow and Ors [2009] ICR 424. Since then the Court of Appeal has decided Jurkowska v Hlmad [2008] EWCA Civ 231 and also see my judgment Bost Logistics v Gumbley and Ors UKEATPA/0013/08,Westmoreland v Renault UK Limited UKEATPA/1571/08 and most recently [Harper v Hopkins ]()[2010] EWCA Civ 1246 where the Court of Appeal expressly approved my approach to the law and practice in hearing these appeals from the Registrar. Put simply the rules and the Practice Direction together require the potential Appellant to lodge the relevant documents within 42 days of the date the judgment was sent and these are prescriptive. This is a generous time limit and the EAT is entitled to enforce it. There is a discretion to extend time which is an open discretion.

1. The Registrar set out the facts as follows:

"The decision in this case was promulgated on the 15th June 2010. The final date for appealing was the 27th July 2010. The appeal was received on the 31st August 2010. The Appellant claims that his application was made well in time but there were delays by the Watford Employment Tribunal. Further he sent his appeal in the post but it was returned.

In fact the EAT did receive a set of envelopes from the Appellant and one appeared to show that he had sent something to the EAT perhaps on the 1st July 2010 but that it had not been delivered because it carried insufficient postage. It is important that Appellants ensure that any mail is properly franked and addressed. Even if this envelope did contain the appeal, he had plenty of time to telephone the court to ascertain that it had arrived. Delays in the post are foreseeable as is the possibility of mistaking the final date and the Judgment booklet clearly advises "If you have not received an acknowledgment from the EAT within 7 days of posting the Notice of Appeal you should contact the EAT by phone .. .fax. .. or email to confirm they have received your appeal."

Therefore no exceptional reason has been shown why an appeal could not have been presented within the time limit laid down in paragraph 3 of the Employment Appeal Tribunal Rules 2004. The Appellant is referred to paragraphs 1.8.2, 1.8.4. 3.6 and 4.3 of the Practice Direction 2008."

And the Registrar cited the formidable direction given by Sedley LJ in Jurkowska. She decided that the Notice of Appeal as finally instituted was 98 days out of time.

1. The Claimant made a number of representations about the reasons for his missing the time and cited the internal procedures of the EAT. I have considered most carefully what the Claimant says in the material he has lodged. He says that he did what was reasonably practicable to comply. He contends that it would be unjust and inequitable not to allow an extension of time. There were unforeseeable postal delays and he failed to receive a copy of a judgment. He contends that the material was already lodged within time in June 2010 and he should not have been excluded.

1. Sadly, with the non-appearance of the Claimant today he is not able to take his case any further. As I pointed out in Muschett this is an oral hearing and I am prepared to listen to oral evidence explaining the circumstances for the exercise of discretion to enlarge time.

1. The Respondent has produced a skeleton argument with a chronology which is of assistance. Without the Claimant here I have no reason to doubt the factual background to the case which is that shortly after the judgment was sent on 14 May an application was made for a review. The written reasons were sent on 15 June 2010 from which time ran and so the 42-day period expired on 27 July 2010.

1. Several interim applications were made to the Tribunal on 23 June 2010 but these were rejected by Judge Manley on 28 June. The Claimant filed his appeal on 31 August 2010 which was acknowledged by case managers here at the EAT indicating that the appeal had not been properly instituted. It was properly instituted only on 2 November 2010 when all the documents that the Claimant should have put in initially were lodged at the EAT. The Claimant continues to assert that he fulfilled the guidelines and that the appeal was in time.

1. Mr Purnell contends that there is no basis to allow time to be halted where there are applications for review. A failure to produce material with the proper posting charges paid at the EAT is not an excusable failure and the delay is very substantial. These are the relevant factors as cited in the Registrar's judgment and in the submission of the Respondent, see Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111 and United Arab Emirates v Abdelghafar [1995] ICR 65 both of which appear in the Practice Direction. In my judgment Mr Purnell is right when he says that the application for an extension of time fails at every hurdle. There is no coherent explanation for the delay nor is there a good excuse.

1. Exceptionally, Mr Purnell invites me to consider the merits of the case and this is a ground as set out by Sir Christopher Staughton in Aziz which I am entitled to regard as having an effect on my judgment. This case has no merit and so I would not be doing a service to the Claimant and I would be doing a disservice to the Respondent to breathe life into a case which has no merit. There is no basis upon which I could justifiably exercise the discretion.

1. I would like to thank Mr Purnell for turning up today. I have not called upon him for any oral submissions to support his written argument which seems to me in the absence of the Claimant to be compelling.