Appeal No.	 PA/344/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 July 1999
Judgment delivered on 23 August 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
(AS IN CHAMBERS)

MR S EMBLING	APPELLANT

BRITISH STEEL PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR A D TWINEHAM
(Solicitor)
Instructed By:
Jacksons 
Innovation House
Yarm Road
Stockton on Tees
TS18 3TN

	MR JUSTICE MORISON:	This is an appeal against the refusal by the Registrar to extend time for the lodging of a Notice of Appeal.  The Registrar’s order was made on 4 May 1999 and the appeal from her order is three days out of time but in the circumstances I am prepared to overlook that period of time and deal with the substance of the appeal.  

1	Mr Embling was employed by British Steel Corporation for some 27 odd years.  His employment came to an end in the circumstances described by the Employment Tribunal in their decision which was sent to the parties as long ago as 28 May 1991.  The Tribunal had a preliminary hearing on 4 March 1991 at Hull to determine whether Mr Embling had been dismissed.  It was British Steel Corporation’s contention that he had resigned and accepted early retirement on medical grounds with a payment in lieu of notice and balance of sick pay.  
Mr Embling was contending that he had been effectively bullied and coerced into accepting early retirement because he had effectively been told that if he did not take that option he would be dismissed and left without money.  

2	The issue therefore fell to the Tribunal to determine whether there was a genuine voluntary resignation or whether he had been coerced into accepting retirement on health grounds.  For the reasons given in their decision, as I have indicated, the Employment Tribunal found in favour of the employers, British Steel.  The Notice of Appeal in this case was dated 17 March 1999 and therefore was out of time by seven years and ten months.  

3	What Mr Embling says by way of explanation for the extreme delay in this case is that between 1997 and 1998 December, he acquired access to information which affected the merits of his dismissal claim.  In particular, he says that although a very senior person employed in the Transport Department, he had been lied to by his employers and denied the opportunity of a redundancy payment.  He said that a number of younger people, less senior than himself, had been given redundancy, but told to keep quiet about it until after his Employment Tribunal proceedings had been completed.  He only discovered that very recently.

4	He said that he himself had been told that there were no plans for redundancy as a result of which he had been deprived of the opportunity of seeking what is called in that industry a “cross match entitlement” through which process he could have got out of the Transport Department and transferred into another process which would not have led to a redundancy nor would it have led to him leaving British Steel’s services as a result of the Transport Department effectively being privatised.  

5	He discovered, he says, this information as a result of other proceedings both in relation, as I understand it, to his personal injury claim which was compromised but also as a result of the proceedings he has taken against his trade union for the way they dealt with his dismissal and in effect, as I understand it, suggesting that they too were colluding with management so as to deprive him of his rights.  

6	I am satisfied on the material which has been put before me, that the information on which Mr Embling wishes to base himself on his appeal was not in his possession until 8 December 1998.  But I have to say that I do not regard the late acquisition of this information as providing a satisfactory explanation for the delay.  In the first place, it is to be noted that the Applicant’s complaint before the Employment Tribunal was rejected by the Tribunal without the need for the employers to give their evidence.  It was rejected because the Applicant effectively accepted in cross-examination that he had decided because of his health issue, having been off work sick for some 20 weeks prior to his dismissal, to take the best that he could get, which meant that he could get a pension and a lump sum.  

7	To qualify for such early retirement requires the employee to assert that he is retiring on health grounds and is doing so voluntarily.  Unless there is a resignation on health grounds for pension purposes, he would not have been entitled to the pension which he has in fact received.  It seems to me unlikely therefore that a person in his position can both assert for the purposes of the pension arrangements that he is a voluntary retiree and at the same time assert before the Employment Tribunal that he is being compelled to leave.  If he was truly dismissed as opposed to resigning, then it may be that he was not entitled to the pension which he has been paid.  

8	But in any event, as his complaint was rejected without the employers giving evidence it is improbable that the result of this case was procured by British Steel in some way misleading the Employment Tribunal by the evidence which they did not in the end present to it.  

9	Secondly, it seems to me that even if Mr Embling discovered for the first time in December 1998 that he had grounds for making an appeal to the Employment Appeal Tribunal he should have acted promptly.  More than 42 days has elapsed between 9 December and the date when the Notice of Appeal was filed on 17 March.  It is true that he applied to the Employment Tribunal for a review having received these documents, but as he must have known from the published information in leaflet form, the fact that one is applying for a review from the Employment Tribunal is not a good ground for not launching an appeal to the Employment Appeal Tribunal.  Mr Embling, by waiting until after his application for a review had been dealt with and refused, has ignored the time limit of 42 days for appealing.  

10	In any event, as it seems to me, the interests of justice demand that this appeal should be dismissed.  It would be quite impossible as it seems to me, for justice to be done between the parties because the only possible result of a successful appeal to this Court would be a remission back to a newly constituted Tribunal for a fresh determination of his complaint.  The matters in question took place in 1990 and it is obvious as it seems to me that justice could not be done at this late stage.

11	In giving my reasons for saying that time should not be extended, I have given Mr Embling the benefit of the doubt as to the importance of the information which he says he has now acquired.  By doing so, I do not wish him to be of the view that I have accepted that the documents which he has produced show that he was misled or abused either by his union, or by his employer.  That is an issue with which I am not directly concerned.  For the reasons I have attempted to give, I do not consider that I have been provided with a good explanation for the delay in lodging this appeal and in the circumstances I do not exercise my discretion to extend time.  I agree with the decision of the Registrar and therefore dismiss the appeal.