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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barrett v Dickson Manchester & Co Ltd [2002] EWCA Civ 574 (18 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/574.html Cite as: [2002] EWCA Civ 574

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(MR RECORDER BURKE QC)

		Royal Courts of Justice Strand London WC2 Thursday, 18th April 2002

Thursday, 18th April 2002

1. LORD JUSTICE PETER GIBSON: This is an application by Michael Barrett for permission to appeal from the order made on 18th January 2002 by the EAT dismissing his appeal. That appeal was from the decision promulgated on 8th November 2000 of an Employment Tribunal sitting in Stratford. It held that Mr Barrett's originating application was out of time and that the Tribunal had therefore no jurisdiction. The EAT refused permission to appeal on the ground that there was no arguable basis for an appeal, the Tribunal having correctly applied the law and made findings of fact which it was entitled to make.
2. I summarise the background facts in this way. In his IT1 Mr Barrett said that he had been employed by the defendant, Dickson Manchester & Co Ltd, as a claims broker from February 1998, and that in July 1999 he was forced to go absent without leave from work to deal with a cocaine addiction for which he blamed the managing director at the defendant. Mr Barrett wrote to the defendant a letter which was received on 5th January 2000. In it Mr Barrett said that he would make himself available for a disciplinary hearing over his unauthorised absence. The defendant responded on 11th January, saying that by a letter received on 23rd August 1999 Mr Barrett had resigned from his employment and that the resignation had been accepted by a letter sent by the defendant that day. Mr Barrett was sent his P45 with a letter dated 3rd September 1999. In that letter it was stated by the defendant that the effective date of termination was 23rd August 1999. Mr Barrett accepts that he received the letter of 3rd September, but he did not respond to it until January. He says that the letter of resignation of 23rd August purportedly from him is a fake. It was only on 22nd June 2000 that Mr Barrett lodged his IT1. In it he claimed unfair dismissal and only unfair dismissal. He said that the defendant had effectively dismissed him. In the defendant's IT3 the defendant took the point that Mr Barrett's appeal was out of time. By section 111(2)(a) of the Employment Rights Act 1996 there is a limitation period of three months beginning with the effective date of termination.
3. The Employment Tribunal considered the limitation point at a preliminary hearing on 2nd November 2000. It did not decide whether or not the letter of resignation was a fake. What the Tribunal said in relation to the limitation point was that Mr Barrett had accepted receipt of the letter of 3rd September "about the end of October 1999". Mr Barrett had given evidence that he had taken the letter to the Citizens' Advice Bureau, who suggested that he should see a solicitor. But he did not approach a solicitor at that time.
4. The Employment Tribunal was satisfied that in writing as the defendant did on 3rd September, it thereby brought the employment contract to an end on the date when that letter was received. In the light of the evidence as to when the letter was received, it said that it was prepared to treat the date of communication of that acceptance of the termination of employment as 31st October 1999. The Tribunal pointed out that Mr Barrett had obtained Job Seeker's Allowance, had sought and obtained other employment and had made two insurance claims based on the fact that he had become unemployed. The Tribunal said that, consequently, the proceedings should have been brought by Mr Barrett at the latest by 30th January 2000, and Mr Barrett was over four months late. It referred to evidence from Mr Barrett that he knew that there were time limits, that he thought he had three years and that he had sought advice from solicitors. The Tribunal concluded that it was reasonably practical for Mr Barrett to bring his claim in time, and accordingly the Tribunal unanimously dismissed his application.
5. Thus the Tribunal was taking the view that on any footing, whatever may be the true position about the so-called "letter of resignation" and the acceptance of that resignation that day by the defendant, the defendant's letter of 3rd September when received constituted the effective date of termination which could not be later than 31st October. Mr Barrett later in a statement of truth dated 26th July 2000 said that he did not in fact receive the letter until the middle of November. He had left what he called "my employer's point of address" on 9th August 1999. He had gone to live elsewhere. He had come back from time to time to his earlier address, but he did not receive the letter of 23rd August 1999 from the defendant but eventually received the letter of 3rd September.
6. In view of the evidence before the Tribunal, it is hardly surprising that the Tribunal came to the conclusion which it did. The decision of the Tribunal was sent out with explanatory notes, as is the Tribunal's invariable practice. Although at one time Mr Barrett denied receiving those notes, he accepted in one of the handwritten statements which he has put in that he had in fact received the notes, but he does not appear to have considered what they contained. Those notes would have told him what he had to do if he wanted to appeal.
7. After the hearing before the Employment Tribunal there was considerable correspondence between Mr Barrett and the Employment Tribunal. There is a dispute as to when, and what, correspondence was received by the Tribunal. There is a letter dated 25th October 2000 in which Mr Barrett makes complaints about the hearing, which he described as "the hearing today". That might suggest that the true date of the letter was 2nd November 2000, but he says that it was faxed on 21st November to the Tribunal. In his letter he referred to his

"very severe cocaine addiction, which has left me suffering severe paranoid attacks to this very day and leaves me very confused on how I spent my last 6 months in the previous millennium".

8. In the letter he accused the Tribunal staff of accepting bribes. He said that the hearing before the Tribunal had been unfair. He asked that the matter be referred to an alternative tribunal. He said that he did not believe that any appeal at Stratford would be fair. The Regional Chairman responded on 20th December. He described Mr Barrett's allegations of bribery as vexatious. He also said that Mr Barrett had a right of appeal to the EAT in respect of the Tribunal's decision.
9. The Tribunal had expressed its decision by way of summary reasons only. Mr Barrett sought to obtain extended written reasons by letter dated 7th October 2000, and that was refused on 10th October 2001 as being outside the 21-day period allowed for making such a request. Mr Barrett then lodged a Notice of Appeal at the EAT on 11th October 2001. But the EAT pointed out by letter dated 15th October 2001 that rule 3(1) of the EAT Rules 1993 required the lodging of extended written reasons for there to be an appeal to the EAT. On 25th October 2001 and again on 15th November 2001, the Employment Tribunal while refusing extended written reasons told Mr Barrett that the Tribunal's summary reasons were probably sufficiently detailed to enable him to base an appeal on them. It is, of course, possible for the EAT by rule 39 of the 1993 Rules to dispense with any failure to comply with requirement of the Rules.
10. Mr Barrett lodged no less than nine notices of appeal. Four of them were put before the EAT on 18th January 2000. Three of them were notices to appeal, not against judicial decisions of the Employment Tribunal, but against what had been said in letters. The EAT said that those three matters had been withdrawn. But in any event the EAT said that it would have struck them out if they had not been.
11. I should record that one of the notices of appeal has a date stamp of when it was received which is plainly incorrect. The Notice of Appeal is dated 26th October, as indeed are several other notices of appeal. The others all have the correct date stamp on them. A wrong date stamp of 26th November 2001 was for some reason put upon it, but it was not a matter to which the EAT referred or relied upon in any way whatever in deciding the appeal. The Notice of Appeal which it did consider related to the decision that the Tribunal did not have jurisdiction because the IT1 had been lodged out of time. The EAT pointed out in its judgment that the first matter to be considered was whether or not there should be an extension of time to allow the appeal to go ahead because the Notice of Appeal was so far out of time after the original decision of the Employment Tribunal in November 2000.
12. Mr Barrett had counsel appearing for him under the Employment Law Appeal Advice Scheme. The EAT said this in paragraph 8:

"We have pointed out to [counsel] that if the substantive appeal, as it was, was out of time, and if no extension of time were granted, although an extension of time was sought by Mr Barrett, there would be no point in considering whether or not the appeal could proceed on summary reasons because the appeal would never get off the ground, it having been presented too late. "

13. I pause to say that the Notice of Appeal with the incorrect date stamp was one in relation to the refusal by the Tribunal to provide extended written reasons.
14. The EAT continued:

"Mr Menzies [Mr Barrett's counsel] has helpfully agreed with that analysis and has therefore made concise and extremely helpful submissions to us as to why an extension of time for the substantive appeal should be granted. He also agrees, pragmatically and helpfully, that if we were to extend time and if we agreed that the appeal should proceed on summary reasons (as if time were extended we would be minded to do) there would be no purpose in our considering the appeal against the refusal to grant extended reasons. But if we were not to extend time the substantive appeal could never get under way in a substantive form; and, therefore, for that reason too there would be no point in our considering the appeal against the refusal to grant extended reasons. Thus, that appeal can be dismissed whichever way we deal with the substantive appeal and we therefore dismiss it."

15. Thus, the EAT explained why they were dismissing it. The EAT went on to say that it did not appear to it that it had any real merits in any event. That was plainly not part of the reasoning by which it reached the earlier conclusion.
16. The EAT then went on to the live issue, that is whether an extension of time in relation to the Notice of Appeal against the substantive hearing should be granted against the background that the Notice of Appeal was presented something like 300 days too late. The EAT had heard from Mr Barrett submissions as to why the delay was excusable. Mr Barrett had not received, or had mislaid and never read, the notes which accompanied the decision of the Tribunal. Mr Barrett had complained in the letter dated 25th October of the Employment Tribunal's decision. Mr Barrett had become ill. Mr Barrett had been abroad for some months, not taking the papers with him. He says that he discovered some time after coming back that there was an Internet site for the Employment Appeal Tribunal. Only then did he realise that his appeal could be sent to the EAT. That is why he lodged his notice on 10th October.
17. The EAT then considered three questions. One was the extent of the default in presenting the Notice of Appeal in time; second was the explanation provided for the default; and, third, whether there were circumstances which would justify the EAT taking the exceptional course of extending time. On the first point the EAT said that the default was very substantial, particularly bearing in mind the letter of 20th December 2000 from the Regional Chairman telling Mr Barrett about his right to appeal to the EAT. On the second and third points the EAT said that the explanation disclosed did not even begin to be an adequate or acceptable explanation of the delay. The EAT therefore decided that there were no circumstances which would warrant an extension of time, and so the appeal was dismissed.
18. Mr Barrett appears in person before me today. He has put before me an extensive document running to 26 pages headed "Application for Permission to Appeal", which I treat as his skeleton argument. He has added to that in his oral submissions. He has also put before me a bundle of documents, many of them containing other submissions by him. I have read them all. He gives as his grounds of appeal the following:

"It is in the interest of Justice for my case to be heard at a full and/or main hearing within the E.T. as to date my former employer has been allowed to get away with discrimination against a minority. My Human Rights have been abused by my former employer and I cannot stand down until they are held accountable for their actions even if I need to go to the European Court of Human Rights.

The worst thing is delays in preliminary issues that never even existed. A law that has to me changed the rules as it goes along. I still suffer from having been discriminated against. The initial Decision of 2/11/2000 needs to be reviewed as it was made as a result of a misunderstanding.

The decision was unjust because of serious procedural irregularities before the EAT proceedings as attached in the Bundle of Documents for this Appeal. Because of the procedural irregularities the Decision of 18/1/2002 is wrong (as per bundle of documents)."

19. The primary point taken there appears to be that there has been discrimination against him. I understand from the papers that to be a complaint that because of Mr Barrett's sexual orientation he has suffered discrimination at the hands of his employer. The only ground on which he presented his complaint to the Tribunal was that of unfair dismissal. True it is that he referred to his other complaints in other documents later, but the fact is that the only ground before the Tribunal was the IT1's complaint of unfair dismissal, and of course he would be out of time with any discrimination complaints, even assuming - and that is a huge assumption - that he could bring his case for discrimination within any of the relevant Discrimination Acts.
20. In his skeleton Mr Barrett complains of a number of matters. I will deal with those which appear to me to be the most important. He has told me that the substantial point taken by him is that based on the decision of this court in William Hill Organisation Ltd v Gavas [1990] IRLR 488. In that case summary reasons for the Employment Tribunal's decision in an unfair dismissal case were given. The EAT considered that in the absence of full reasons it was impossible to adjudicate properly on the matters the subject of appeal. The question was raised whether the EAT should exercise its power under what was then the equivalent of Rule 39 to dispense with extended written reasons. But the EAT decided on the facts of that case that that was not appropriate. This court held that it could not interfere with that conclusion. Mr Barrett appears to want to argue that because he failed to ask for extended written reasons within the required time, the time limit for appeals has not even started to run. That is absurd. It cannot be right, particularly in an employment context where time limits are always regarded as extremely important, to allow the applicant's own default to extend time. The way the EAT dealt with the matter was on the basis most favourable to Mr Barrett, though he does not appear to appreciate that.
21. Then Mr Barrett complains that the EAT got various facts wrong. He regards as crucial a statement in the judgment that Mr Barrett was in hospital in the early part of January 2001, whereas in truth he was in hospital in November 2000. That hardly seems to me to be a crucial fact. He was out of hospital by 15th November on his own evidence. Thus, the erroneous reference by the EAT to Mr Barrett's being in hospital in January means that he has even less of an excuse for not having got on with the appeal.
22. Then Mr Barrett takes a point that in the letter of 25th October 2000 he was in fact requesting a review. I am afraid that on reading the letter (as I have done) with care, it does not seem to me to be a request for a review, as distinct from indicating that he was dissatisfied with the decision of the Tribunal and would like to appeal. Of course an appeal has to be lodged, not with the Employment Tribunal, but with the EAT, as the Rules make abundantly clear and as I am sure the notes which accompanied the decision would have done also. In any event, an application for a review is only permissible on the five limited grounds which are stated in the Employment Tribunal Rules. There is no reference to any such grounds in that letter. Indeed, I suspect that Mr Barrett was wholly unaware of them. Further he never followed up that complaint.
23. Then Mr Barrett takes the point that whilst the Regional Chairman had told him that an appeal would have to be to the EAT, he was not given the EAT's address. It hardly requires a genius to find out where the EAT is and where an appeal notice should be lodged. Quite apart from the notes accompanying the Employment Tribunal's decision, he could have asked the Regional Chairman; he could have asked any CAB; he could have picked up the London telephone directory to find the answer.
24. Then he says that he told the Employment Tribunal on 14th January 2001 to pass the papers on to the EAT. The Employment Tribunal does not know of such a letter. No copy has been provided. I do not doubt that had the letter had been received by the Tribunal, Mr Barrett would have been told that it was not for the Tribunal to act as a postman for an appellant: it was for the would-be appellant to lodge the Notice of Appeal and the other documents which are prescribed by the rules and for which the letter itself would be insufficient for the EAT. Again Mr Barrett does not appear to have followed up that letter, if it was sent.
25. Then he says that the EAT, in paragraph 10 of its judgment, misunderstood the facts of his going abroad. The EAT had said that he went to Tenerife for several months. Mr Barrett says that he went to Tenerife twice during 2001 and that the EAT should have distinguished between the two occasions. But the EAT was only purporting to report what Mr Barrett's counsel had said. In any event, Mr Barrett, on his own account, did go for several months from 13th February 2001, although for less than three months, and he went again in May. He says that he did not take his files with him on the first visit. But that hardly shows an error by the EAT.
26. I will not lengthen an already overlong judgment with a further recitation of complaints made by Mr Barrett. He has frankly said that, being a lay person, he has not understood the EAT's decision.
27. I have to say that having looked at all his grounds, none of them seems to me to have any real prospect of success. Mr Barrett has said that there are compelling reasons why the appeal should be allowed to go ahead. He says that his human rights have been destroyed. He complains of the conduct of the defendant, his employer. I do not think that any of his complaints would amount to a compelling reason for allowing the appeal to go ahead. I am afraid an appeal would be quite hopeless.
28. I would therefore dismiss this application.
Order: Application dismissed.