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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Horsford v. London Borough of Harrow & Anor [2000] EAT 453_99_2507 (25 July 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/453_99_2507.html Cite as: [2000] EAT 453_99_2507

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APPEARANCES

 

For the Appellant	MR J WAITHE (of Counsel) Messrs Dalton Barrett 58 Britton Street London EC1M 5UP
For the Respondents	MR R GREENING (of Counsel) Harrow Legal Services London Borough of Harrow Civic Centre Station Road Harrow HA1 2UH


 


JUDGE CLARK

1. This is an appeal by Mr Horsford, out of time, against the Registrar's order dated 26 May 1999, refusing to extend time for appealing against a decision of the London (South) Employment Tribunal promulgated with extended written reasons on 13 October 1998. The original application for an extension of time, not setting out the grounds of the substantive appeal, was by letter dated 15 April 1999, 142 days after the time for appealing the Employment Tribunal decision had expired. Notice of appeal against the Registrar's order of 26 May 1999 was lodged by a letter dated 27 July 1999. The time for appealing against the Registrar's order under the Employment Appeal Tribunal Rules is 5 days.

History

2. It is necessary to set out some of the history of this case.

The Appellant was employed by the Respondent Council as a Personnel Manager from 18 August 1996 until his summary dismissal on 18 February 1998. He presented 2 Originating Applications to the Employment Tribunal. The first on 6 October 1997, alleged racial discrimination and other matters; the second, presented on 14 April 1998, complained of unfair dismissal and racial discrimination/victimisation.

3. There has been a history of adjournments. A directions hearing listed for 20 January 1998 was postponed at the Appellant's request. On 11 February 1998, at a directions hearing, a Chairman, Mr P R K Menon ordered the Appellant to provide further and better particulars of the first complaint. He failed to comply with that order and on 24 April 1998 another Chairman, Mr Carstairs made a further order for particulars and a £50 cost order against the Appellant.
4. The 2 cases were combined and listed for hearing on 2 – 4 June 1998. On 29 April the Appellant's then solicitors applied for a postponement. That was granted by a Chairman on 11 May.
5. On 6 July the cases were listed for a 5 day hearing commencing on 29 September. On 7 September the Appellant applied for an adjournment. On 18 September his solicitors wrote to the Employment Tribunal to say that they were no longer acting in the case. The application for a postponement was refused by a Chairman on 22 September.
6. Mr Waithe tells me that the Appellant was on holiday in Jamaica on 29 September and accordingly he did not attend the hearing. The Respondent was present. The Employment Tribunal dismissed all his complaints, save for that of unfair dismissal which was adjourned pending the outcome of the Seymour-Smith litigation, by a decision with extended written reasons promulgated on 13 October 1998. (the substantive decision).
7. On 15 April 1999 the Appellant wrote to the Employment Appeal Tribunal seeking an extension of time for appealing against the substantive decision. That application was refused by the Registrar on 26 May 1999, and on 27 July the Appellant brought this appeal against the Registrar's order.
8. The earlier pattern continued. On 5 August 1999 this appeal was listed for hearing on 21 September. On 2 September the Appellant applied for an adjournment on grounds of illness. That application was allowed by the Registrar and on 11 October the appeal was relisted for 8 December 1999.
9. On 7 December the Appellant applied for a further adjournment, again on medical grounds. The application was opposed by the Respondent but again granted by the Registrar on 7 December. On 29 March the appeal was listed for this hearing today.

Extension of Time

10. Appeals to the Employment Appeal Tribunal out of time will only be permitted in exceptional circumstances. It is for the Appellant to satisfy me that he has provided a full, honest and acceptable explanation of the reasons for delay. Aziz -v- Bethnal Green City Challenge Co Ltd (2000) IRLR 111, approving the guidance given by Mr Justice Mummery in United Arab Emirates -v- Abdelghafar (1995) ICR 65.

The Appellant's Explanation

11. Treating the Appellant's letter of 15 April 1999 as a Notice of Appeal although that is not accepted by Mr Greening on behalf of the Respondent, coupled with an application for extension of time, the Appellant contends he did not receive the Employment Tribunals extended reasons until 14 April 1999.
12. I have been referred to a letter written by the Appellant to the Employment Tribunal dated 28 December 1998, in which he states that on 7 December 1998 he telephoned the Employment Tribunal and spoke to a clerk Mr Steve Grice who said that a decision had not yet been produced but would be available at the end of the week. In fact, it is said, the Appellant did not receive the substantive decision until it was faxed to him as a result of the telephone call he made during April 1999. On 14 April the copy of the decision with my papers was indeed faxed on that date by the Employment Tribunal.
13. The Respondent disputes that assertion. They say that they received their copy of the decision promulgated on 13 October 1998 shortly thereafter. I see from a letter written on behalf of the Respondent to the Employment Appeal Tribunal dated 4 May 1999, that a representative of the Respondent, Elaine McEachron, telephoned the Employment Tribunal and spoke to Mr Grice on 28 April 1999. He referred to the file in this case. He found no record of having spoken to Mr Horsford on 7 December 1998, had he done so he would not have said the decision had not yet been produced since it is dated 13 October 1998 and a copy would presumably be on the file.
14. I have to consider whether I can believe the Appellant's explanation as to why he did not put in, what I have treated as a Notice of Appeal until 15 April 1999. Quite frankly, I do not. It seems to me that whatever else may happen with an Employment Tribunal file, the one document which it can be fairly safely assumed to be there and remain there is a Tribunals promulgated decision. I am satisfied that a copy of that decision was on the file because it was sent out, at any rate to the Respondent and a copy was available to be faxed to the Appellant on 14 April 1999 at his request.
15. In these circumstances I find it incredible that if the Appellant had telephoned the Employment Tribunal offices on 7 December, as he asserts and spoke to a member of staff Mr Grice and that member of staff would without referring to the file simply make up an answer, that is that the decision had not yet been produced but would become available by the end of that week, that is the very end of December 1998.
16. Having rejected the explanation put forward by the Appellant I am not satisfied that this is one of those exceptional cases in which it would be right to exercise my discretion in favour of extending time for appealing against the substantive decision. There are further difficulties in the Appellants way as Mr Greening has pointed out. Not least that no satisfactory explanation has been given for the delay in appealing against the Registrar's order.
17. I shall finally mention submissions made by Mr Waithe, which go to the merits of the substantive appeal. He wishes to take a human rights point under article 6(1) of the convention, that is that the Appellant did not receive a fair hearing on 29 September because as the Employment Tribunal knew he was unable to attend that hearing. I do not in so far as it matters accept that submission for one moment. It seems to me after the history of adjournments in this case which I have earlier related, that it was for the Appellant to make himself available for the hearing on 29 September 1998 not to go on holiday. In any event, as Mr Justice Mummery pointed out in Abdelgahfar the merits of the underlying appeal are not of any great significance when considering an application for extension of time. In all these circumstances I shall dismiss this appeal.
18. On the question of costs in this case I shall direct that the Appellant lodge a current Legal Aid certificate within 7 days of today. Copy to be served on the Respondent. Liberty to the Respondent to restore the application for costs. Both parties are content for it to be dealt with by way of written submission and therefore I shall direct that if that application is made it should be made within 14 days of the expiry of the 7 day period I have just mentioned for the Respondents submissions, the Appellant to reply within 14 days thereafter and I shall adjudicate on it on paper.

Judgement on Costs

19. On 25 July 2000 I heard an appeal, out of time, by Mr Horsford against the Registrar's order dated 26 May 1999, refusing to extend time for his proposed appeal against a decision of the London (S) Employment Tribunal dated 13 October 1998.
20. For the reasons given on that occasion I dismissed the appeal. Having done so, Mr Greening applied on behalf of the successful Respondent for costs in the appeal. At that stage a question arose over the Appellant's legal aid status and I directed that the Appellant lodge a current Legal Aid certificate within 7 days and granted liberty to the Respondent to renew its application for costs, any such application to be dealt with on paper.
21. I now have before me a copy legal aid certificate and written submissions as to costs both from Mr Greening and Mr Waithe on behalf of the Appellant.
22. Having considered those submissions my conclusions are as follows:

(1) This appeal was unnecessary within the meaning of Rule 34(1) EAT Rules. It was a "non-starter", to use Bristow J's expression in Redland Roof Tiles Ltd -v- Eveleigh (1979) IRLR 11. Prima facie, the Respondent is entitled to its costs in the appeal.

(2) The Appellant appears to have been covered by a Legal Aid Certificate from 11 December 1999 until after completion of the hearing before me on 25 July 2000.

(3) I accept that the Appellant is currently unemployed and of limited means.

(4) In these circumstances I shall order that the Appellant pay the Respondent's costs in the appeal, but exercise my powers under Regulation 127 of the Civil Legal Aid (General) Regulations 1989 to postpone the determination of the Appellant's liability until such time as it may be shown, on further application by the Respondent, that the Appellant has the means to pay such costs as may be assessed.