King v. Odam Rawson Ltd (t/a Crown Guard) [2000] UKEAT 248_00_1310 (13 October 2000)

JUDGMENT Revised © Copyright 2000 APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT MR JUSTICE LINDSAY (PRESIDENT I have before me the appeal of Mr Frank King, in the matter King –v–Odam Rawson Ltd t/a Crown Guard . Mr King appeals against the Registrar's Order refusing an extension of time for his Notice of Appeal. Neither side appears this morning. It is now nine minutes past eleven, and the matter was listed to come on at ten thirty. So far as concerns Mr King's position, two telephone numbers are known to the Employment Appeal Tribunal office as possibly relating to Mr King and both have been tried: at one there was no answer and the other transpired, as it seems, to be a shoe shop. Anyhow, such contact as has been sought to be made in that way has led to no communication to or from Mr King. There is no reason to believe that he has intended to appear today but has somehow found himself delayed or unable to attend and accordingly I shall go ahead without his presence, or having heard further from him. On 24 August of last year he presented an IT1 claiming non-payment of wages. On 1 September, the employer, Crown Guard, put in an IT3. On 5 January there was a hearing at the Employment Tribunal at Lincoln under the Chairmanship of Mr J S Walker and on 11 January that decision was sent to the parties; it was that there had been no unlawful deduction of wages, there had been no breach of contract in relation to reimbursement of the rental of the mobile phone by the Applicant to Mr King, but there had been a breach of contract by Crown Guard in that the Applicant was summarily dismissed without notice and Crown Guard were ordered to pay £72 as damages. There is no suggestion that it has not been paid. The decision was unanimous. On 22 February, the six weeks prescribed by the rules as the time within which a Notice of Appeal must be lodged with the Employment Appeal Tribunal and which runs from the sending out of the decision on 11 March expired. On 25 February, therefore three days late, the Notice of Appeal was received. On 14 March the Employment Appeal Tribunal office asked Mr King whether he wished to apply for an extension of time and on 8 April he indicated that he did and so applied. As is the customary practice, the Employment Appeal Tribunal then asked the Respondent for its views, and on 18 March, I think it is, (it might have been the 15 th ) the Respondent opposed an extension of time. On 9 May Mr King added his final submissions on the point. On 2 June the Registrar made her Order which contained the following, amongst other provisions: "AND UPON DUE CONSIDERATION of the aforesaid letter" and that is a reference to a letter of 8 April, the one I have mentioned, "and a letter from the Respondents dated 18 th day of April 2000" and that confirms the date was the 18 th rather than the 15 th "and a further letter from the Appellant dated the 9 th day of May 2000 AND UPON DUE CONSIDERATION of the Appellant's application which contains no reason for late submission of the late Notice of appeal AND UPON DUE CONSIDERATION of paragraph 3(1) of the Practice Direction (Employment Appeal Tribunal - Procedure) where it is clearly the responsibility of the Appellant to ensure that an appeal is submitted to the Employment Appeal Tribunal within 42 days AND UPON FURTHER CONSIDERATION of the Judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) DR A K ABBAS 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. It is ordered that application for an extension of time in which to present the Notice of Appeal is refused. On 4 June Mr King appealed against that Order and accordingly the matter has come to me. I am quite unable to find any explanation of why the 42 days proved insufficient. The Order that I read from refers to the Abdelghafar case which provides general guidelines in matters such as this but it is worth remembering that that matter has recently been considered by the Court of Appeal in a more recent case, Aziz –v- Bethnal Green , where one of the arguments was that the strict line taken in the Employment Appeal Tribunal as to compliance with this rule was stricter than the Court of Appeal itself applied in relation to appeals to the Court of Appeal and that that was inappropriate. However, in Aziz –v- Bethnal Green the strict line habitually taken in the Employment Appeal Tribunal was not disapproved and the approach indicated in the guidelines of Abdelghafar was upheld. Many cases in the Employment Appeal Tribunal get struck out on very short delays (even delays as long only as one day). Accordingly, although here I am dealing with a relatively short lapse of time, three days, consistently with the practice habitually exercised here the case is fit to be struck out. The merits underlying the prospective appeal form a relatively small part of considerations at this stage because one cannot go into the merits in any detail as otherwise one would have to hear the appeal in order to determine whether the appeal should be heard, which would be an absurd situation to be arrived at. But such a brief view of the merits as is possible at this stage fails to indicate that this is an appeal, or would have been an appeal, with any real strength. In any event Mr King therefore may console himself with the fact that he has really not lost anything that was likely to succeed in any case. But, leaving aside a brief view of the merits or letting it only form a small part of the consideration before me and attending principally to the absence of any exceptional reason being shown why the Notice of Appeal here was late, I have been quite unable to find any explanation of an acceptable reason, and accordingly dismiss the appeal. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII