Appeal No. PA/955/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 17 May 1995

	Before

	THE HONOURABLE MR JUSTICE MORISON

	(IN CHAMBERS)

MR V W CARVER	APPELLANT

BRITISH AIRWAYS PLC	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R A GERMAN
(Lay Representative)

For the Respondents	MR J BOWERS
(Of Counsel)
	British Airways Plc
	PO Box 10
	Heathrow Airport (London)
	Hounslow
	TW6  2JA

	MR JUSTICE MORISON:  Mr Carver, whom I shall call, if I may, "the Applicant", was employed by British Airways from 1989 to 11 January 1993 as a batching clerk in their ticketing department.  Unfortunately he suffered a heart attack in February 1992 and was seriously ill.  He did not return to work.  After enquiries had been made of the prognosis and following a home visit, his manager wrote a letter of dismissal.  The Applicant presented a complaint to an Industrial Tribunal alleging he had been unfairly dismissed.  Following a two day hearing, the Industrial Tribunal unanimously dismissed the complaint, holding the dismissal to have been unfair.  The Applicant was represented at the Industrial Tribunal by Mr German, who describes himself as a lay representative, and who has appeared on his behalf this morning.  

	The decision was entered in the Register and sent to the parties on 20 May 1994.  Under the rules there is a forty-two day period for filing a notice of appeal.  Such a notice should have been filed by 1 July 1994.  On the Application Form an Applicant is invited to indicate the name of his representative with whom the Industrial Tribunal then communicates.  On his IT1, a Mr Harry Smith of the GMB was listed as the representative, together with the Union's address.  When a decision is completed, it is sent to the Secretary to the Tribunals, who then signs it, enters it in the Register and sends it to the parties.  Paragraph 20, Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 empowers the Tribunal to send the decision to the authorised representative if such has been stated on the originating application in accordance with Paragraph 1(1)(a) of the Schedule.  Where a document is sent by post, it is, unless the contrary is proved, deemed to have been received in the ordinary course of post.  The office of the Industrial Tribunals ensures that notification of hearings and decisions are sent to the specified address.

	Under paragraph 20, a person can inform the Industrial Tribunal of a new address or a new representative to whom documents should be sent.  It would appear that in accordance with their practice, the Industrial Tribunal sent the decision to the GMB but not to Mr German, who had told the Industrial Tribunal he was the Applicant's lay representative. I think it fair to say that there was no express indication given to the Industrial Tribunal that the GMB Union were no longer instructed, or should, to use a colloquialism, "come off the record" so far as documentation was concerned.  Be that as it may, on 17 June, having heard nothing, Mr German telephoned the Industrial Tribunal and asked about the decision.  He was told his query would be looked into.  Nothing happened.  It seems to me regrettable, as a matter of good administration, that he should have been dealt with in this manner.  He telephoned again on 26 July 1994 and was told then that it had been sent to the GMB on 20 May.  He could well have been and should have been told that when he first telephoned.  On 29 July he wrote to the Industrial Tribunal complaining about what had happened and asking them to extend his time for appealing.  He said he had still not received the decision.  On 4 August 1994, the Industrial Tribunal responded saying that it was up to the Employment Appeal Tribunal to decide whether time for appealing should be extended.  On 16 September Mr German wrote to the Employment Appeal Tribunal saying that the Applicant wished to appeal.

	The grounds of appeal are: first, that the Industrial Tribunal attached too much significance to the receipt by the Applicant of an invalidity benefit; second, the Industrial Tribunal should not have accepted the Employers' evidence that they had tried but failed to find light work for the Applicant, having regard to the evidence of a Section Manager, who said that he had not been approached about that possibility.  The Registrar refused to allow the Applicant an extension of time.  The Applicant, through Mr German, now appeals against her decision.

	In the circumstances, I am prepared to take the view that down to the end of July, the Applicant had a reasonable excuse for not putting in a Notice of Appeal before that time, as the decision was only received by Mr German at the end of July.  I am afraid to say that I cannot say that it would be a proper exercise of my discretion to extend time to the extent which would be required to enable this matter to proceed.  Mr German was asking for an extension of time as at the end of July.  He was therefore aware of the time limit and the need for an extension of time, but he did nothing for six weeks between the time he received the decision and the time he wrote his letter to the Employment Industrial Tribunal.  However harsh this may seem, having regard to the fact that he is a lay person, who is doing considerable good work in the community, it seems to me that I cannot say that he has shown a good excuse for the delay, such that I should exercise my discretion so as to extend the time so far as is necessary.  That said, I should add that had I acceded to the application today, the matter would have been listed for a preliminary hearing, to determine whether the grounds of appeal showed an arguable case that the Industrial Tribunal had misdirected itself in law.  In my judgement the Applicant has not shown any such arguable case. 

	The disposal of this appeal therefore, is of no affect on the eventual outcome of the case.  It was for the Industrial Tribunal to listen to the evidence and decide what weight to attach to it.  That means they were, as a matter of fact, entitled to place such significance on the disability pension as seemed to them appropriate, in the light of all the other evidence.  Further, it was for them to weigh the evidence of the Section Manager as part of their overall assessment as to the availability of light work.  Their conclusions on these matters were pure questions of fact.  Therefore, if I extend the time, it would merely postpone the moment at which the appeal was dismissed.  In those circumstances I dismiss the appeal but express my gratitude to Mr German.