Potential Appeal No. PA/1350/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 March 2000

Before
HIS HONOUR JUDGE PETER CLARK

(AS IN CHAMBERS)

MR B SZANTHO	APPELLANT

NUFFIELD NURSING HOMES TRUST LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRARS ORDER
Revised

	APPEARANCES

For the Appellant	In Person	
For the Respondent	MR W DIAMOND
(Representative)	

JUDGE CLARK

1	Mr Szantho worked one shift as an agency nurse at the Respondent’s Bournemouth hospital on 31 October 1998.  On 23 March 1999, he presented an Originating Application to the Employment Tribunal, complaining that the Respondent had unlawfully discriminated against him on the grounds of his sex.

2	That complaint was resisted and came on for hearing before an Employment Tribunal sitting at Southampton (Chairman Mr Andrew Hogarth) on 27 July 1999.  At the end of the hearing the Employment Tribunal announced its decision; the Appellant’s claim was dismissed.  That oral decision was followed by a decision promulgated with extended reasons on 7 September 1999.  In those reasons the Employment Tribunal described the application as being “quite hopeless”, in their view.

3	Against that decision, the Appellant appealed by a Notice lodged on 12 November 1999, 24 days out of time.  Invited to apply for an extension of time for appealing, the Appellant wrote to the Employment Appeal Tribunal on 3 December 1999, explaining his reasons for the delay in appealing.  He said that he had tried to contact the Chief Executive of Southampton Employment Tribunal a reference to the Regional Chairman, Mr Edwards, to discuss his case in depth; finally he was told to appeal if he thought the decision was wrong.  Further, he had sought to speak to what he described as the right people at the government Department of Health and the National Health Service Executive.  He was told that his complaint would be dealt with only after he made an appeal.

4	Additionally I understand that since the decision the Employment Tribunal was promulgated, Mr Szantho has been in fairly constant correspondence with the Respondent.  That he tells me today, explains why he did not put his Notice of Appeal in, in time.  He says that he was disappointed with the Employment Tribunal and did not really trust Tribunals.  He hoped to resolve his dispute through correspondence.  When that appeared to be leading nowhere, he put in this Notice of Appeal.

5	Asked for their comments, the Respondent’s representative, Mr Diamond, who appeared below, wrote to the Employment Appeal Tribunal on 17 December opposing an extension of time for appealing.  He said that at the end of the Employment Tribunal hearing the Appellant told the Employment Tribunal that he did not accept their decision and wished to appeal.  The Chairman then explained that the Appellant should wait until he received the Employment Tribunal’s extended reasons, whereupon he would have 42 days to appeal from the date of the decision.  By a letter dated 27 December 1999 the Appellant asserted that at the Employment Tribunal there was no discussion about any appeal.

6	Mr Diamond appears before me today as does Mr Szantho and that dispute as to what was or was not said at the end of the Employment Tribunal’s hearing is maintained.  It is not necessary for me to resolve that conflict because Mr Szantho accepts that with his copy of the Employment Tribunal’s decision, dated 7 September 1999, he was sent the Employment Tribunal’s notes which deal among other things with appeals to the Employment Appeal Tribunal.  He tells me he read those notes and paragraph 18 of the notes advises parties that if they wish to appeal they should appeal to the Employment Appeal Tribunal within 42 days from the date of promulgation of the decision against which the appeal is to be brought.

7	The written representations of the parties were considered by the Registrar on 5 January 2000.  She refused to extend time, directing herself in accordance with the guidance given by Mummery J in United Arab Emirates –v- Abdelghafar [1995] ICR 65.  She held that there were no exceptional circumstances justifying an extension of time.  It is against that order that Mr Szantho now appeals to me.  He was anxious to address me on the merits of his case.  I explained that that was not a matter for me at this hearing, which is convened solely for the purpose of deciding his appeal against the Registrar’s order refusing an extension of time.

8	Returning to guidance given by Mummery J in Abdelghafar, at page 72(c) of the report, he said this:

“Thus the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are
What is the explanation for the default?
Does it provide a good excuse for the default?
Are there circumstances which justify the Employment Tribunal taking the exceptional step of granting an extension of time?

9	In this case the explanation for the appeal being lodged out of time is that the Appellant was engaged in correspondence with various bodies and he did not really trust Tribunals.  That explanation, in my judgment does not provide a good excuse for the delay in lodging the Notice of Appeal.  I bear in mind some of the excuses collected by Mummery J, at page 71E - F, of the report which in earlier cases had not been held to be good excuses for delay.  They include such explanations as the Appellant waiting for a review hearing before the Employment Tribunal or pursuing an internal appeal for grievance.

10	It seems to me that the explanation put forward in the present case is very much to be equated with those sorts of excuse.  Without a good excuse, it would not be right for me to exercise my discretion in favour of extending time.  Time limits are there to be observed and there must be a very good explanation for them being missed.  There is no good explanation in this case and accordingly I shall dismiss this appeal.