Appeal No. UKEATPA/0194/09/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 September 2009

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR M A MAJID	APPELLANT

TESCO STORES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – ALL PARTIES

	APPEARANCES

For the Appellant	MR A MAJID
(The Appellant in Person)	
For the Respondent	Written submissions	

SUMMARY
PRACTICE AND PROCEDURE
TIME FOR APPEALING

Reasons for an Employment Tribunal Judgment were not attached to a Notice of Appeal when the Claimant sought to appeal part of the Judgment because they had not been requested. The Registrar refused an application for extension of time. Although the Claimant did not appeal within 5 days as required by Rule 21(2), exceptionally time for that was extended as the Registrar’s refusal did not cite the Rule and the Claimant did not know it. 

On hearing evidence, there was no reason to enlarge time for the substantive appeal.

HIS HONOUR JUDGE McMULLEN QC 

1.	This is an appeal from the decision of the Registrar not to allow the registration of a Notice of Appeal sought to be lodged by the Appellant.  I will refer to the parties as the Claimant, Mr Majid, and the Respondent, Tesco Stores.

Introduction
2.	The appeal itself is an appeal by the Claimant in those proceedings against part of the judgment of an Employment Tribunal sitting at Reading under the chairmanship of Employment Judge Barrowclough over five days, registered with reasons on 26 March 2009.  The judgment itself, which followed an oral judgment with reasons on 14 January 2009, was sent to the parties on 22 January 2009 with a copy of The Judgment, a booklet which explains to parties how they can appeal.

3.	The Claimant was employed as a duty manager at Tesco Express store in North Wycombe, Buckinghamshire.  He got into a dispute with a customer and a co-worker and was dismissed for gross misconduct.  The Tribunal rejected his claim of unfair dismissal but upheld his claim of race discrimination and awarded him £2,000 for injury to feelings.  The appeal is against the rejection of his unfair dismissal claim and the level of the award, the Tribunal refusing to give any compensation for loss of earnings

4.	The Claimant did not appeal within time and no explanation within time was given, so the Registrar called for explanations as to why the appeal should be registered.  They were received from both the Claimant and the Respondent.  The Registrar refused to exercise her discretion and the Claimant appeals from that.  But the deadline for so doing is five days and he waited from 24 April to 2 June 2009 before making an appeal, so before me is a second order of the Registrar on 17 June 2009 refusing the Claimant’s application for an extension of time.

5.	The Claimant sought to appeal against that and the matter comes before me pursuant to a further direction given by the EAT on 24 June 2009. The Respondent considered the material submitted by the Claimant and decided it would rely upon written submissions, which it has sent with a chronology.

6.	The Claimant has attended in person.  Because he was at one stage asserting that he had not received the judgment, I decided I was bound to hear evidence from him.  He provided evidence on affirmation during the course of which he accepted he had made a mistake and that he had indeed received the judgment dated 22 January 2009.

The law
7.	The relevant provisions of law and practice are set out in my judgment in Muschett [2009] ICR 424.  Since then, the Court of Appeal has decided Jurkowska v Hlmad Ltd [2008] EWCA Civ 231 and I have decided Bost Logistics Ltd v Gumbley & Ors [2008] UKEATPA/0013/08.  I considered all these authorities in Westmoreland v Renault UK Ltd [2009] UKEATPA/1571/08.

8.	The EAT rules require a Notice of Appeal and all supporting documents, as prescribed by the Practice Direction, to be lodged within 42 days of the date the reason are sent to the parties.  The Practice Direction also says what documents must be included for the Notice of Appeal to be validly lodged.  The 2005 Practice Statement makes clear that these are prescriptive provisions and there is no special treatment of litigants in person, which Mr Majid is.

9.	The Registrar decides whether to extend time under Rule 37(1). An appeal lies to a judge from the Registrar.  In effect, it is a fresh hearing, sometimes, as today, with live evidence.  I make up my own mind.

10.	The Registrar directed herself by reference to the relevant legal provisions.  She called for representations and refused to extend time. An appeal must be lodged within five days: Rule 21(2).

The facts relating to the Notice of Appeal
11.	The judgment having been sent without written reasons on 22 January 2009, the deadline for a validly constituted Notice of Appeal was 5 March 2009.  There was no application by the Claimant for written reasons: written reasons were not sought at the hearing, nor within 14 days as required by Rule 30(5) ie by 28 January 2009.  .

12.	On 18 February 2009, the Claimant sent to the EAT the Notice of Appeal, the ET1, part of the ET3 (the pro forma but without the essential grounds of resistance) and the judgment.  On the same day, an officer of the EAT case managing this appeal wrote to point out that the appeal was not properly lodged and what was required.  The Claimant contacted the Employment Tribunal to request written reasons.  The Employment Tribunal, apparently under the misapprehension that written reasons had already been requested in time, sent written reasons on 26 March 2009.

13.	The appeal was not properly instituted in time. It was four days late.  The question is whether extensions of time should be granted.

14.	As to the failure to appeal within five days of the Registrar’s refusal, the Claimant said that he did not know he had five days to appeal.  He had, however, been sent the practice direction on 18 February 2009, which makes that clear.  I do not accept that he did not have the means of knowing how to appeal from the Registrar.

15.	However, I note that neither in the Registrar’s order nor in her detailed reasons is there an indication of the right of appeal.  Generally in the EAT, when an application has been refused or an order made, the order includes how to appeal and when.  In these unusual circumstances, although I do not accept the Claimant’s explanation, I am prepared to look beyond that and deal with this as a matter of substance on the evidence: why did the Claimant submit the documents four days late? I grant an extension under Rule 37(1).

Discussion
16.	First, the Claimant says that he was very stressed as a result of reading the judgment and of the Tribunal’s refusal to award him more compensation than it did.  He has produced no medical evidence. In any event, the Claimant was sufficiently stress-free on 18 February 2009 to submit the bulk of his Notice of Appeal and thereafter to apply to the Employment Tribunal.  The stress factor disappears and this is not a sufficient basis upon which I should exercise my discretion. What the Claimant did was incompetent.  He did not include the reasons.  He had not sought reasons from the Employment Tribunal and he was alerted to this problem by the Tribunal’s letter of 18 February 2009 in good time to rectify it.  He did not respond until 9 March 2009.

17.	Secondly, he told me that he contacted solicitors to seek advice after receiving the letter, again leaving some two weeks before the deadline expired.  The solicitors would not give him advice unless he paid them in advance.  I am sympathetic to the Claimant, but the rules are the same for litigants in person as for those who seek advice and cannot get it because of financial restraints.  He knew this problem within the 42 days. I do not accept that as a reason for extending the deadline.

18.	Thirdly, the Claimant complains that as a litigant in person he did not understand the law.  The matters he had to understand were not legal; they were practical.  The letter of 18 February 2009 makes clear what he had to do and he did not do it. I have not had an account which explains let alone excuses the inaction during the whole of that period.

19.	In any event, for a subsidiary technical reason the Claimant cannot succeed.  He did not ask for written reasons within the 14 days. The Notice of Appeal did not contain reasons nor say that a timely request had been made so he cannot get the appeal off the ground.

20.	Lest the Claimant be dissatisfied with my judgment, I indicated to him that following the judgment of Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111, it is in certain cases permissible to look at the underlying merits.  A case which has none may more easily justify refusal to extend time.  This is such a case.

21.	The Notice of Appeal itself is simply a reassertion of the facts the Claimant put before the Tribunal.  If I were to allow this procedural appeal, the next stage would be a sift under Rule 3.  If I were to do it, I would form the opinion that it had no prospect of success.  The Appeal Tribunal is not the place to reargue the facts, although I can understand the Claimant wishes, as he puts it, to clear his name.  As it is constituted, this Notice of Appeal would be bound to fail.  That is a factor I bear in mind when deciding not to exercise my discretion in favour of an extension of time.

22.	I hope that Mr Majid, since he told me how difficult it is to get a job in the retail sector, will bear in mind that he succeeded at an Employment Tribunal and that he has failed to appeal part of the decision because he was too late.  That may make it easier for him to live with this judgment. The appeal is dismissed. Permission to appeal refused [reasons not transcribed].