Appeal No. UKEATPA/0224/05/MAA & UKEATPA/0314/05/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 August 2005

Before
HIS HONOUR JUDGE McMULLEN QC
(AS IN CHAMBERS)

MR J M CLIFFE MRCS	APPELLANT

KNOWLEDGE SUPPORT SYSTEMS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDERS 

	APPEARANCES

For the Appellant	MS D CLIFFE
(Representative)	
For the Respondent	MR NICHOLAS SIDDALL
(of Counsel)
Instructed by:
Messrs Halliwells
Solicitors
1 Threadneedle Street
London EC2R 8AW	

SUMMARY

Practice & Procedure:  Appellate Jurisdiction 

Woodward applied to uphold Registrar’s judgment on time but, equally, discretion exercised to extend.  Appellant’s wife made all reasonable efforts while doing Tsunami relief to communicate with EAT.  Restore following affidavit on bias.

HIS HONOUR JUDGE McMULLEN QC
1.	I have pre-read the relevant papers and I will refer to the parties as Claimant and Respondent.

Introduction
2.	It is a would-be appeal by the Claimant in those proceedings against the judgment of an Mr S D Robinson Employment Tribunal Chairman sitting alone at Manchester.  It was a Reserved Judgment and Reasons and it was sent to the parties on 9 December 2004, following a three day hearing and a day in chambers.  As today, the Claimant was represented by his wife, and the Respondent by Mr Nicholas Siddall of Counsel.

3.	The Claimant made a number of claims including, so far as is relevant, unfair dismissal.  The Respondent took a number of points.  The Chairman upheld the Respondent’s case that the Tribunal had no jurisdiction to consider the unfair dismissal claim because the Claimant worked outside Great Britain.  He did have jurisdiction to hear the Claimant’s Equal Pay Act claim, for there is not so restricted a regime, and all other claims were dismissed upon withdrawal.  The Claimant was unhappy at the finding in respect of unfair dismissal and sought to appeal, raising a number of issues including issues which might be regarded as apparent bias as well as legal issues and challenges to the findings of fact.  The Registrar decided that the Notice of Appeal had not been submitted within the 42 days required, which expired on 20 January 2005, for the documents which had been received by that date excluded the ET1 and the ET3.  That is the substance of today’s appeal.

4.	The finding by the Registrar was as follows:

“It is not an acceptable reason for delay that the appellant states that his appeal was in time and contained all the relevant enclosures, being sent by fax on the 14th January. There is no record of this. The Notice of Appeal was received on 17th January with no papers attached and no explanation for their absence. On the 18th and 21st January emails were received attaching the Notice of appeal, the judgment and written reasons only. The appellant was notified of the deficiency (no ET1 or ET3) by the court on 25th January 2005 but no documents were received until the 23rd of February. It is the appellant's responsibility to submit all the proper documents and since December 2002 the ET1 and ET3 have been required documentation. Since 1st October 2004 Rule 3(1) (b) makes the submission of these documents compulsory. Information in respect of the documents required to constitute an appeal was sent to him and is available through many sources and bodies. However the appellant failed to respond and on the 3rd February 2005 the President issued a Practice Statement stating that in future no excuses of ignorance for the failure to submit proper documentation would be tolerated. He has failed to submit a properly constituted appeal and gives as an excuse that his representative was away performing relief work in "Tsunami devastated areas". In the absence of any representative, for whatever purpose, it is for the appellant to make proper arrangements for the proper submission of the appeal and that responsibility cannot be avoided by asserting that no. communication was possible”.

The original letter, from which this is an extract, cited the Notice of Appeal as being one day out of time, but in an identically worded letter sent on 27 May, sealed on 2 June 2005, it is said that the Notice of Appeal is 24 days out of time.  

5.	The circumstances in which the Notice of Appeal was directed have been very fully ventilated before me.  As the Claimant is represented by his wife, it seemed appropriate to me to hear Mrs Cliffe’s account, given as sworn evidence, and to offer Mr Siddall the opportunity to cross-examine her.  She had full control of the Claimant’s appeal and thus was in a position to help me understand the circumstances surrounding those critical six or seven weeks following the promulgation of the Chairman’s judgment.  What she told me was that she and her husband decided to appeal fairly quickly.  They received the Judgment on or about 13 December 2004 when they left for New York and shortly thereafter, and certainly by 24 December, a firm decision had been made to appeal and the Respondent’s solicitors were notified in those terms.  

6.	The Claimant himself had obtained work in March 2004 at what appears to me to be a very high level of consultancy with a number of clients including the Pentagon.  He had suffered from a condition which continues.  I was offered some medical evidence as to his condition, but none of the material put before me indicates a medical condition which might be relevant to the decision which I have to reach since I am focusing on the period after 9 December 2004.  The decision of the Cliffes therefore was that the case should be taken forward and that Mrs Cliffe would manage it.  

7.	The Tsunami struck on Boxing Day and this prompted the Claimant to seek to volunteer at the United Nations, for on 5 January 2005 she made herself available to help in Indonesia.  She has long connections and much experience in Indonesia and on 7 January flew out there to do relief work where she stayed until March.  On that day, she took with her a CD on which all of the papers for the appeal had been reduced digitally.  Instead of transmitting the material to the EAT before she left when, of course, communications between the EAT and the United States would have been unaffected by the Tsunami, she decided to do nothing until 14 January.  By that time, as she must have known, communications from the Tsunami stricken areas would have been very poor and, indeed, they were, for that affected the way in which the EAT received what was, in Mrs Cliffe’s words, a garbled copy of the Notice of Appeal.  

8.	On 14 January I find that there was no communication by the Claimant’s wife to the EAT.  The evidence is of a fax machine with an incorrect date and which I do not regard as in any way probative of a communication received at the EAT.  Mrs Cliffe told me that she attempted to send it through an ineffective and presumably damaged fax machine on 14 January.  I accept that she made that step, but at least this record does not show its receipt by the EAT.  What it simply shows is the EAT’s number.  It shows 59 pages and that the result is “OK”, but there is a problem on this fax because it is dated 1/1/2002.  

9.	On 17 January the Registrar has noted that a Notice of Appeal was received but that no papers were attached and that there was no explanation for their absence.  Further e-mail traffic occurred on 18-21 January.    On 17 January the Registrar had caused a letter to be written to the Claimant himself at his address in Stoke-on-Trent, notifying him that the appeal had not been properly instituted in accordance with the rules.  The contents of that letter were open on 18 January by a person authorised so to do at the Cliffe’s home and Mrs Cliffe herself was told of the contents of this letter on that date.  On 18 January, the Registrar noted that an e-mail was received attaching the Notice of Appeal, the Judgment and the written Reasons only. Mrs Cliffe, at that time, had already sent the document by e-mail to a colleague at the Marriott Hotel, Hanover, Germany. Mrs Cliffe is a very senior person within the Marriott organisation and relied upon this person to send a fax to the EAT.  The indication is that a fax of 59 pages was sent on 17 January, indicating a result of “OK”.  This is from the transmission verification report at the Marriott Hotel, Hanover.  The Claimant had therefore proved to me that she had taken a number of steps to ensure that the document arrived at the EAT.  They included sending it via fax through Hanover and also an e-mail.  

10.	The e-mail traffic internally at the EAT indicates that some material reached the EAT by way of e-mail and it is apparent to me that it included some of the documents which now end up as the 59-page document.  Put simply, I find that if one printed out Mrs Cliffe’s CD-rom, it would amount to 59 pages and contain all the documents necessary to constitute a valid appeal.  I do not see how that document could arrive in part, but the finding of the Registrar is that on 18 January the documents did not include the ET1 and the ET3 and for whatever reason, I accept the finding that the documents were incomplete.  

11.	Thus, I turn to the law.  This Registrar has set out the legal provisions in her letter referring, quite properly, to Kanapathiar v London Borough of Harrow [2003] IRLR 571, Chelminski v Glydnia America Shipping Lines (London) Ltd EWCA Civ 871 and Aziz v Bethnal Green City Challenge Company Ltd (2000) IRLR 111.  

12.	I have this morning given the parties a copy of the judgment in Woodward v Abbey National plc and J P Garrett v Craig Cotton, appeal number UKEATPA/0534/05 and UKEATPA/0030/05.  This is a judgment by Burton P and members in which he disapproves and does not follow his own judgment sitting alone in Midland Packaging for reasons which he gives.  The rationale of his judgment appears as follows:
“30.	This is a different and considerably less lenient approach to the use of the fax transmission mechanism than was accepted by me on behalf of the Employment Appeal Tribunal in Midland Packaging.  I am satisfied that it in fact encourages both certainty and consistency because, contrary to Mr Brown’s submission, this would be entirely consistent, not only with the operation of the post, but also the operation of e-mail, where there will be a record at the Employment Appeal Tribunal of when the e-mail arrives, and of course the e-mail will, assuming it has the relevant attachments, be a complete document at the moment it arrives.
31.	In my judgment, it is right that there should be one test for all such methods, and that test is when “received by the EAT”, and the evidence as to when it is received by the EAT, so far as both e-mail and fax are concerned, will be when they are recorded electronically as received by the EAT. And the requirement is for a complete document, and that is the case whether it is presented by post, by e-mail by hand or by fax”.

13.	In order to answer the question which the President posed as to when was a complete set of documents received by the EAT, it is necessary to accept the findings as to the contents of both the e-mail and the fax.  The absence of the two documents, the ET1 and the ET3, is fatal.  This, however, was not made clear until after the President’s Practice Statement issued on 3 February 2005.  He had found it necessary to issue that statement because there was very substantial failure to comply with paragraph 1.8.2 of the Practice Direction.  From the date of the Practice Statement, therefore, there is very unlikely to be a situation where an appeal would be regarded as correctly lodged, if it did not contain all of the relevant documents.  

14.	The EAT in the Woodward cases upheld the Registrar’s decision that the appeals were out of time, but decided to exercise its discretion to allow the appeal to be registered.  It did so because it is plain that both of the facts set out in those judgments related to a time prior to the Practice Statement.  So are the facts in this case, although I accept that some of the material emerges in February and March.  

15.	Mr Siddall, on behalf of the Respondent, has argued very persuasively from a Notice of Appeal, that the law, as now set out above, should be followed and I agree.  I accept his submission that the Claimant should have put in a Notice of Appeal in time.  Having witnessed the Tsunami myself, I have very great sympathy with Mrs Cliffe when she indicates the work that she did following it to help the suffering in those communities. It is obviously highly valuable and I can see that her mind was not focused on this EAT matter.  As she put it, she prioritised her family and her Tsunami work above the filing of the Notice of Appeal.  

16.	I reject the contention that the Claimant’s ill-health was a ground for not submitting the Notice of Appeal.  It is evident from his business activities that he is well enough to operate at a high level and having already decided to leave this matter in the hands of his wife, his ill-health does not matter.  If he were in charge of it, that would be different, but there is no evidence relating to the Claimant’s wife’s health and therefore the Claimant’s health is neither here nor there, if I may say with respect.  

17.	The Notice of Appeal was a day late. I am however, prepared to exercise my discretion to allow this appeal to go forward.  The Claimant has demonstrated to me by her evidence that she was well aware of the time limits and took steps to ensure by a number of different routes that the relevant documents reached the EAT.  It does from time to time happen that there is no explanation for material getting lost in the ether.  The Woodward rule that everything depends on the EAT log is a very practical and useful rule and will be maintained.  But for the same reasons as the EAT was prepared to exercise discretion, so do I.  I hold that Mrs Cliffe acted reasonably in assuming, from the various forms of communication which he had in January that the documents would be submitted.  She was put on notice by the EAT on 18 January, two days before the time limit and she acted properly to ensure that, what she accurately says is, the 59 page document containing all the material got to the EAT.  Sadly, it did not.  I can understand also that nothing further was done about this until what is now accepted to be complete registration of the documents on 23 February 2005 and I put that down to Mrs Cliffe’s absence on Tsunami relief and her understanding that she had already sent the documents in.  

18.	I raised with Mr Siddall whether I should take account of the merits of the substantive case for that is an approach which is available to me (see the judgement of Sir Christopher Staughton in Aziz).  Very fairly, he said that he could not say that there was no merit at all in the appeal and so, I do not consider the merits of the case.  I simply observe that one of the issues, that relating to the territorial jurisdiction point, appears to me to be one which is very weak.  I will, however, now give directions.  

19.	This appeal is in time.  Two options are available.  I can send this to a preliminary hearing or I can decide that there is no merit in it at all.  That is a process which I will go through without the assistance of the parties, but it seems to me that since a criticism is made of the Chairman alone, an opportunity should be given to the Chairman to answer that criticism.  Therefore, I will stay this appeal and I will issue a direction that the Claimant or his wife put on affidavit the material which is the subject of the bias or improper procedure allegation and I will then send that to the Chairman and to the Respondent so that comments may be made.  The matter will then be restored to me on the sift and I will then decide whether this case should be directed to a preliminary hearing, a full hearing or whether it should be sent by way of Rule 3.