Appeal No.	 PA/1296/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 November 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
(AS IN CHAMBERS)

HM CUSTOMS AND EXCISE	APPELLANT

MR D D SAWDON	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

Revised

	APPEARANCES

For the Appellant	MR S SALZEDO
(of Counsel)
Instructed By:
HM Customs and Excise
Solicitor's Office
New Kings Beam House
22 Upper Ground
London
SE1 9PJ	
For the Respondent	IN PERSON

	MR JUSTICE LINDSAY (PRESIDENT):

1	I have before me the appeal of HM Customs and Excise in the matter of D.D. Sawdon against those Commissioners.  The Customs and Excise appeal against the Registrar’s ruling that there should be no extension of time in which the Customs and Excise might lodge their Notice of Appeal.  Before me today the Customs and Excise have been represented by Mr Salzedo and Mr Sawdon has been here in person.

2	I need to say something of the chronology of the case.  On 17 August 1999 there was a hearing at the Tribunal at Brighton.  It had been planned to be a hearing that dealt with the whole case but, through the exigencies of time, it was determined that there should merely be a hearing as to a preliminary point.  The preliminary point went as to jurisdiction.  It was in relation to sums paid to Mr Sawdon by his employer, the Customs and Excise, whilst he was unable to work following a traffic accident.  Were those sums wages, within section 27 of the Employment Rights Act 1996?  The system has been explained to me this morning by Mr Salzedo;  it is dependent upon proper construction of Home Civil Service Third Party Injury Regulations made in 1983.  That was dealt with on the afternoon of 17 August 1999 and on 2 September the decision of the Tribunal, which was under the chairmanship of Mr J. Simpson at Brighton, was sent to the parties.  It reads as follows:

“The unanimous decision of the Tribunal is that the payments which the Applicant claims have been deducted by the Respondent are wages within the definition of s.27 of the Employment Rights Act 1996 and the Tribunal has jurisdiction to hear this claim.
There will be a resumed hearing [and then it gives the date and place which was fixed for 4 October 1999].”

3	On 4 October there was then the substantive hearing which that decision on the preliminary point anticipated.

4	On 13 October the decision in the substantive case was sent to the parties.  This time it was merely a majority decision and it read as follows:

“By a majority decision, the Tribunal declares that from the 24th August 1999 the Respondent has made unlawful deductions from the Applicant’s wages of the amount of the AAA allowance and orders the Respondent to pay the Applicant the amount wrongly deducted.”

5	That, as I say, was sent to the parties on 13 October and on the very same day the Commissioners of Customs and Excise sent a Notice of Appeal to the Employment Tribunal, not to the EAT, as it should have been, but to the Employment Tribunal.  On 14 October, the next day, there expired the six weeks period during which an appeal might be lodged against the decision sent to the parties on 2 September.

6	On 15 October the Employment Appeal Tribunal received the Notice of Appeal against the decision of the 2 September and there was an accompanying letter from the Customs and Excise that, inter alia, said this:

“This Notice of Appeal is lodged one day out of time and the Respondent therefore applies for an extension of time to lodge the appeal.  The Notice was lodged with the Tribunal rather than the EAT by mistake on 13 October 1999.  The Respondent respectfully submits that the Applicant would not be prejudiced by the appeal being lodged out of time because the delay is only one day, the arguments which form the subject of the appeal were heard at length in the Tribunal and the Respondent intends to appeal against the decision of the Tribunal on the substance of the case (the Tribunal’s extended reasons on the merits have only just been published).
Further, the grounds of the appeal relate solely to the jurisdiction of the Tribunal and the Respondent therefore contends that on the hearing of the appeal on the merits it would be entitled to raise the same points by virtue of the EAT’s decision in House v Emmerson Electric Industrial Controls [1980] ICR 795, in which it was held that the EAT can hear arguments as to jurisdiction, even where these were not raised in the Tribunal.”

7	There having been an application there for an extension of time, the Employment Appeal Tribunal, as it normally does, sought the views of the Respondent and on 25 November the Applicant, Mr Sawdon, opposed any extension of time.

8	On 6 January 2000 the Customs and Excise returned to the matter with some written arguments.

9	On 26 January 2000 the Registrar made her Order which includes the following:

“AND UPON due consideration of the Judgment given in UNITED ARAB EMIRATES AND (1) MR A ABDELGHAFAR (2) DR A K ABBAS and the fact that the Appellant was fully aware of the time allowed to appeal and has had access to legal advice throughout 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 the application for an extension of time in which to present the notice of appeal is refused.”

10	A number of arguments are presented to me today by Mr Salzedo, on behalf of the Customs and Excise.  He says that the issue is one of importance affecting many Crown employees, but to that one might say all the more reason, surely, to have made sure that one lodged a Notice of Appeal in good time.

11	Mr Salzedo says that the hearing on 17 August was split into a preliminary point, leaving over a substantive decision for later, through no wish of the parties.  That, he says, was a mere accident of listing but it is hard to see that as being of any relevance as to an extension of time for a lodging of a Notice of Appeal.  He says an appeal has been lodged as to the substantive decision.  That is the case, but, subject to one argument I shall need to return to, it is hard to see that as being of relevance to this application although it does, of course, show that the Customs and Excise can be in time if they put their mind to it.

12	Mr Sawdon, he says, suffers no prejudice as the delay is so short.  But the absence of prejudice is rarely conclusive and very often of little weight.  He says also that the Customs and Excise can raise the point in any event in the substantive appeal, but that would merely diminish the prejudice the Commissioners would suffer from being denied an extension of time.  Of course, he relies on the fact that there was an attempt, albeit a mistaken one, to lodge a Notice of Appeal in time, in the sense that on 13 October a Notice of Appeal was sent to the wrong addressee, the Employment Tribunal.  But it is hard to see how its receipt by the wrong addressee is of really any great materiality.  He says that the merits need to be taken into consideration and that here they indicate strongly in the Customs and Excise favour.  But merits seldom play a conclusive part, unless they are manifestly almost irresistible, or, on the other hand, manifestly almost doomed to fail because otherwise one can get into a situation in which one cannot tell whether an appeal ought to be allowed to be heard without hearing it, which would be an absurd situation to arrive at.

13	In any event, looking at the extremely broad language of section 27 of the Employment Rights Act and seeing that it includes within wages “any sums payable to the worker in connection with his employment” and then “or other emolument referable to his employment”, it is far from clear that the sums payable under the Home Civil Service Third Party Injury Regulations 1983 are not in connection with employment or referable to employment.  

14	I have in mind the Abdelghafar case which, as Mr Salzedo has rightly said, is merely a provider of guidelines.  It by no means fetters the discretion which I have.  I also have in mind the later case of Aziz v Bethnal Green [2000] IRLR 111, in which, amongst the arguments raised, was the argument that the practice of the Employment Appeal Tribunal was stricter with regard to extensions of time for Notices of Appeal than was that of the Court of Appeal itself, that that was wrong and that, therefore, the Employment Appeal Tribunal was being too strict on time.  But the relatively strict practice of the Employment Appeal Tribunal survived unscathed.

15	However, one point above all seems to me to be a point in favour of the Customs and Excise in this matter and it is this, as advanced by Mr Salzedo, that perhaps the chief of all the considerations which lead to limitations of time being placed on the lodging of Notices of Appeal is the desire for finality in litigation.  I see the force of that.  He couples that argument with saying that here (at all events if the Employment Appeal Tribunal lets the substantive matter go to a full hearing) the case will be that to allow this Notice of Appeal to be accepted out of time does not detract from finality in any way or delay a situation in which finality can be achieved because, in any event, there would have to be a wait for the determination of the substantive appeal.  I regard that as the most important factor in the discretion which I have.  I have mentioned a number of factors which have left me unimpressed with the Custom’s case but that, as it seems to me, tips the balance in their favour.

16	Accordingly, I shall extend time for the lodging of a Notice of Appeal until 15 October 1999, thus validating the Notice of Appeal which the EAT received on that day.