Appeal No.	 PA/378/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 February 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)

(AS IN CHAMBERS)

MR A COVEY	APPELLANT

CO-OPERATIVE INSURANCE SOCIETY LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
(In Person)	
For the Respondents	NO APPEARANCE BY
OR ON BEHALF OF
THE RESPONDENTS	

	MR JUSTICE MORISON (PRESIDENT):	This is an Appeal which Mr Covey wishes to make against the decision of the Registrar refusing him leave to enter a Notice of Appeal out of time.   

	The Industrial Tribunal hearing in question took place on 7 March 1997.   Mr Covey was represented by a trades union official in his complaint brought against the Co-operative Insurance Society Ltd alleging unfair dismissal.   Either on the day of the hearing or by the written reasons sent to the parties on 27 June 1997, the Appellant was informed that his application for unfair dismissal had been dismissed.   He was dissatisfied on the day in question with the way in which the Tribunal proceedings had been conducted and informed his trades union official that he wished to appeal and take it to the highest court.

	He accepts that he received the written decision some time either in June or July and that it was accompanied by a leaflet explaining clearly what the time limits are for appealing but he had other matters on his mind.   He went to Malta for a period of time, returned to this country on 6 July when he was arrested by the police and held on remand until 29 July.   His trial before the Magistrates came in September 1997 and he was in custody between 26 September and 6 November 1997.   He was traumatised - so he tells me - by the events that had happened and recuperated, out of the country, between 20 November 1997 and 20 February 1998.   He returned to this country in order to present his appeal against his convictions on 10, 11 and 12 March, in the Crown Court.   That appeal was not successful.   There was a further matter, namely, an alleged breach of a restraining order.   He spent some of March and April in a Bail Hostel then was subsequently convicted and spent a further, short period of time in custody.

	Mr Covey feels very strongly indeed about the way he has been treated by his employers as he sees it.   He was a respectable man earning a substantial salary and now finds himself without a home, with a criminal conviction and without the prospects of a future career.   He believes that these events have been falsely manufactured against him and he is determined, as he told me, to prove his innocence and has taken steps to see if what he regards as miscarriages of justice can be rectified.   He also believes that he was unfairly dealt with by the Industrial Tribunal at the hearing and that his former employers have set about seeking to ruin him.

	This Appeal is concerned, and concerned only, with three questions.   First, what was the explanation for the delay in lodging a Notice of Appeal, which was 278 days out of time, his Appeal having been received here on 1 April 1998.    Secondly, does that reason or explanation provide a reasonable or satisfactory excuse for the delay?   Thirdly, in relation to those two questions and more generally, how should I exercise my discretion in this case having regard to the guidelines helpfully set out in United Arab Emirates v Abdul Gafar?   

	It appears to me that for understandable reasons Mr Covey occupied himself in dealing with other matters than this.   It is clear that he was able to seek medical assistance in August 1997 and he was not prepared to go so far as to say that he was incapable of lodging a Notice of Appeal in the early part of July or, alternatively, between 29 July, when he was released on bail, and September 1997.   During that period, it seems to me, he was well able to have dealt with this case although, as I have indicated, I do quite understand why it is that he felt there were other, more pressing matters.   

	In the light of the history of the matter it seems to me that I have been provided with an explanation for the delay which amounts to a choice he made as to what order in which to handle the problems he was facing.   Perhaps understandably he put an Appeal to the Employment Appeal Tribunal lower on his list than he should have.   I do not regard that explanation, in the circumstances, as any sufficient excuse such as to entitle me to exercise my discretion in his favour.   The time limit of 42 days is deliberately long to enable people properly to take advice and consider their position.   Industrial Tribunal decisions are accompanied by the leaflet to which I have referred.    If Mr Covey had had difficulties in meeting the deadline of which he must have been aware (because he received the leaflet) then I would have expected him to have contacted the Employment Appeal Tribunal to notify them of his difficulties.   That was not done.   He did not get in touch with us until he lodged his Notice of Appeal.   In the exercise of my discretion, therefore, sympathetic as I am to the personal position in which the Applicant has found himself, I am unable to say that I should exercise my discretion to extend time and, therefore, I agree with the decision of the learned Registrar and the Appeal will be dismissed.

	This Appeal was due to be heard in October of last year when the employers, CIS, informed the Employment Appeal Tribunal that, for one reason or another, that date was not convenient to them.   On the basis of that representation there was an adjournment until today.   Today they have not appeared.   They have indicated that they did not intend to be present at the hearing - that was by letter dated 16 November 1998.   It is most regrettable that they should have represented to the Employment Appeal Tribunal that their convenience demanded an adjournment of the first occasion on which this hearing was to take place and shortly thereafter to indicate that, in fact, they did not intend to participate.   In relation to that I regard the Respondents’ conduct as reprehensible and unreasonable.   But Mr Covey, in my view, has not suffered any loss as a result of it because he was informed in sufficient time to prevent him from coming to the Appeal hearing himself, in October, and he frankly told me that he had not suffered any wasted costs or expenses in connection with the adjourned hearing.   For this hearing he elected to attend, as was his right.   I do not, in those circumstances, consider that any loss has been sustained which should be compensated by any order for costs, which Mr Covey invited me to make.   Accordingly, I must tell him that his application for costs must also be refused on that ground.

	Further, Mr Covey indicated that this was a matter which, whatever I decided, he wanted to take further, as his right, but he requires leave to appeal to the Court of Appeal either from me or from the Court of Appeal.   I shall assume that he has invited me to give him leave to appeal.   I refuse it on the basis that this is the exercise of a discretion vested in the Employment Appeal Tribunal as to whether to entertain appeals out of time and, as it is a discretionary matter, I do not think it appropriate that I should grant leave to appeal.   That does not prevent Mr Covey himself from making an application to that Court.