Appeal No.	 EAT/772/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 January 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

MR M ASHRAF	APPELLANT

FRANCIS W BIRKETT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR COURTNEY HAY REPRESENTATIVE ON BEHALF OF THE APPELLANT	
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS	

		MR JUSTICE LINDSAY (PRESIDENT):

1.	This is an appeal against the Registrar’s order not extending time for the lodging of a Notice of Appeal which was otherwise out of turn.  Looking briefly at the chronology, there was an IT1, on the 30th September 1998, lodged by Mr Ashraf against Francis W Birkett & Sons Ltd. 

2.	The Notice of Appearance on the Respondent’s part was dated 26th October, and then there was a hearing on 6th May when Mr Ashraf was represented by an AEEU representative.  On 24th May, the decision was sent to the parties.  The claim for unfair dismissal had been withdrawn and the claims for racial discrimination and disability discrimination failed.  That having been sent to the parties on 24th May, the six weeks expired on 5th July.  On the 6th July, the Notice of Appeal was received by the EAT.  On 26th July, there was an application for an extension of time.  On 11th August the Respondent’s solicitors opposed the extension and on the 28th August, the Appellant Mr Ashraf, by his advisers, answered that opposition.   On 8th September, the Registrar refused the extension and on 13th September the Appellant, Mr Ashraf, appealed.  

3.	The matter comes before me today, and Mr Courtney Hay of the Northern Complainant Aid Fund has represented Mr Ashraf.  In their letter of 26th July, the Northern Complainant Aid Fund, had said of Mr Ashraf and his application, the following:-
“(i)	the Appellant is a middle aged manual worker of Asian origin, English is his second language.  In the proceedings at the Employment Tribunal he was represented by an official of his trade union, the AEEU.  The Tribunal Decision was sent to his representative who then copied it to the Appellant.  The Appellant was subsequently informed that the Trade Union had sought advice from its solicitors and, as a result, was not prepared to assist him in appealing against the Decision.  The Appellant then consulted the Rotherham Racial Equality Council, a body which has no experience or expertise in submitting appeals to the EAT. The Racial Equality Council sought the assistance of the Commission for Racial Equality without success.  They then approached this organisation namely Northern Complaint Aid Fund on Mr Ashraf’s behalf.” 

And then the letter continued, written by Mr Hay:-
“Our organisation is a small voluntary body and we only have two workers with experience of submitting appeals to the EAT, namely Erskine Grant and myself.  When we were approached by the Racial Equality Council we requested copies of the witness statements and the paginated bundle of documents used at the Employment Tribunal hearing.  Unfortunately, the Appellant and the Racial Council did not have these documents in their possession.  The Appellant contacted the AEEU and we received the witness statements on 23 June 1999 and the paginated bundle of 28 June 1999.  I did not have an opportunity to read the papers and consult with the Appellant (who was in full time employment) about the evidence adduced at the Employment Tribunal hearing before 6 July 1999”.

And, over the page:-

“(ii)	I respectfully submit that would be fair and reasonable to extend time in this particular case, bearing in mind: (a) that the Appellant was not able to submit his appeal without assistance; (b) that his trade union and the Commission for Racial Equality refused to offer him assistance; (c) that his local Racial Equality Council has no experience of submitting appeals to the EAT;  (d) that he did not have copies of the witness statements and, mostly importantly, the trial bundle and, as a consequence, this organisation did not receive the latter until 28 June 1999; (e) that his appeal was submitted as soon as we were able to offer him assistance”.

4.	Well, there was the case for an extension of time. As against that, Addleshaw Booth & Co, acting for Francis W Birkett & Sons on 11th August said:-
“The Appellant was not unrepresented when his representative from AEEU Trade Union forwarded the Tribunal decision to him, it was incumbent on the representative to make it absolutely clear that the 42 limit was in place and running.  This was particularly important as English is not the Appellant’s first language.  As the trade union representative also contacted their solicitors regarding the merits of the appeal, there is no reason why the Appellant should not have been made aware of the strict time limit.  
The Appellant appointed his current representative, the Northern Complainant Aid Fund (“NCAF”), in June 1999, at least 12 days prior to the expiry of the time limit.  The claim that theNCAF “did not have an opportunity to read the papers and to consult with the Appellant before the 6th July 1999” does not hold any substance or merit”.

But the Appellant, by way of the Northern Complaint Aid Fund’s letter of 28th August, countered that.  They said in that letter, again written by Mr Hay, that Mr Ashraf:-
“made considerable efforts to obtain assistance within the time limit. Prior to obtaining my assistance, he did not have the ability or the means to exercise his right to an appeal” 

And then a little a little later:-
“We were not “appointed” as the Appellant’s representative “..12 days prior to the expiry of the time limit”:  we received a request for assistance and 6 July 1999 was the first date on which we were able to assist the Appellant”.  

5.	Well, I have considered the well-known Abdelghafar case, and I do regard this matter as close to the border.  But, for all that, the matter was only 1 day late.  It could be argued - I am not sure how relevant it would be - that one of the 42 days was in any event lost to the Appellant because there was bank holiday on 31st June.  The merits, to the limited extent to which they are to be taken into account, can be commented on as being not obviously and manifestly hopeless.  Mr Ashraf does seem to have suffered from being passed from pillar to post seeking advice in relation to an appeal and this is a case where he did need assistance because English is not his first language.  There is no fault of his own, it would seem, in the delays before the matter came to the hands of the Northern Complainant Aid Fund.  There is no claim of prejudice, on the part of the Respondents, save, of course, the inevitable prejudice that they would have the prospect that an appeal against their interest could be struck out or fail   without consideration of the merits.   

6.	On balance, I think this is a proper case in which the short time extension necessary to validate the appeal, should be permitted.  I allow the appeal and extend time for the lodging of the Notice of Appeal to the seventh of July.