Appeal No. PA/0272/03 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 October 2003

Before
HIS HONOUR JUDGE PETER CLARK
(AS IN CHAMBERS)

MS E MOHTASHAM	APPELLANT

(1) PROFESSOR J SIMPSON	RESPONDENTS
(2) UNIVERSITY OF SOUTHAMPTON

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

Revised

	APPEARANCES

For the Appellant	MS E MOHTASHAM
(the Appellant in Person)	
For the Respondent	MR C DOBBIN
(Solicitor)
Messrs Bond Pearce Solicitors
Town Quay House
7 Town Quay
Southampton SO14 2PT	

HIS HONOUR JUDGE PETER CLARK

1	This is an appeal by Ms Mohtasham, the Applicant before the Southampton Employment Tribunal, against an order of the Registrar sealed on 3 June 2003, refusing her application for an extension of time for appealing.

2	The background is that the Applicant presented 17 Originating Applications against these Respondents, Professor Simpson and the University of Southampton, to the Employment Tribunal, one of which applications she later withdrew.

3	On 25 and 26 November 2002 a hearing took place before a Tribunal chaired by Mr C E H Twiss to consider whether the remaining 16 applications ought to be struck out under Rule 15 (2) (d) of the Employment Tribunal Rules of Procedure 2001 on the grounds that the Applicant’s conduct of the proceedings had been unreasonable, vexatious or scandalous.

4	By a decision with Extended Reasons promulgated on 23 December 2002 that Tribunal found that the remaining applications should be struck out and so ordered.  I note that the decision itself refers to Rule 15 (2) (c), but I am satisfied reading the reasons as a whole that this is a mis-reference to Rule 15 (2) (d).  In addition, the Tribunal ordered the Applicant to pay to the Respondents costs in the sum of £10,000.

5	Before promulgation of the Tribunal’s decision, it having been announced orally at the hearing on 26 November, the Applicant wrote on 11 December seeking a directions hearing.  She also wrote on 21 December.  Following promulgation of the strike out decision, she wrote on 28 December formally seeking a review of the strike out decision.  On 22 January the Chairman dismissed the review application summarily under Rule 15 (5), that is, that in his opinion the review application had no reasonable chance of success.  In his short Extended Reasons for that review decision he indicated that he treated the Applicant’s letter of 11 December as an application for review and took into account her letters of 21 December and 28 December in holding that she had raised no matters which were not or could not have been raised at the November hearing.  The following day, promptly on receipt of the Chairman’s review decision, the Applicant wrote again.

6	On 21 February 2003 she lodged a Notice of Appeal at the EAT, appealing against:

(i)	The Employment Tribunal’s decision to strike out her 16 applications to the Employment Tribunal;
(ii)	The Employment Tribunal’s order of £10,000 costs against her on the basis of being vexatious;
(iii)	The Employment Tribunal declining to provide a reasonable time for the Appellant to state her case; and
(iv)	The Employment Tribunal declining to review its decision of 23 December 2002 and declining to provide Extended Reasons.

7	It is clear to me that the first three heads of complaint relate to the hearing on 25 and 25 November and subsequent decision with Extended Reasons promulgated on 23 December; and that the fourth head relates to the review decision promulgated on 21 February 2003.  It follows that the appeal was in time, so far as the review decision is concerned, but not in relation to the liability hearing and decision.  

8	The review decision appeal was considered by the Registrar on an earlier occasion.  She directed that no further action should be taken under Rule 3 (7) of the Employment Appeal Tribunal Rules 2001.  On a further application to me I upheld that decision.

9	In this appeal the Appellant takes broadly three points.  First, correctly, that the EAT has a discretion to extend time for appealing.  Secondly, she submits that the Tribunal failed to establish the facts in their substantive decision, and that her rights under both the Human Rights Act 1998 and the Employment Tribunal Rules of Procedure 2001 were violated.  In particular she complains that she was not given sufficient time to present her case at the strike out hearing in November 2002.  Thirdly, she points out that the Tribunal was originally designed for unrepresented parties and invites me to exercise my discretion in her favour in this important case.  She says that if she made a mistake in submitting the Notice of Appeal to the EAT then in exercising my discretion I should take into account that she is unrepresented.  She says this is a case which does give rise to special circumstances; first, because she complains that the Tribunal hearing the substantive strike out matter did not clearly find the facts and secondly that any delay in appealing against that strike out order was understandable in circumstances where she was waiting not only for a review decision but also for full reasons for that review decision.

10	I have been taken to the guidance of the former President, Mummery J (as he then was) in United Arab Emirates v Abdelghafar [1995] IRLR 243 and both parties before me rely on certain passages in that judgment.  I note that the principles there stated have been subsequently approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Co. Ltd [2000] IRLR 111.

11	I go to paragraph 27 of the judgment first, where Mummery J said this:

27	(1)	“The timetable set by the EAT Rules should be observed by the parties and their lay and professional advisers.  Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or of the importance of compliance.  When parties are notified of the reasons for the industrial tribunal’s decision they are informed of the 42-day time limit for appealing.  The limits will, therefore, only be relaxed in rare and exceptional cases where the Tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.”

12	Pausing there, I have enquired of Ms Mohtasham whether she received the standard notice which goes out with Employment Tribunal decisions, because, I am reminded by Mr Dobbin, those notes contain this warning, that application for review does not alter the time for Notice of Appeal which continues to run; and Ms Mohtasham tells me she was aware that the time for appealing Tribunal decisions is and was 42 days.

13	I also bear in mind that the Appellant rightly was described by the Tribunal considering the strike out matter as an intelligent person as is clear from the careful way in which she has prepared and submitted her arguments and the bundle which is before me.

14	It seems to me in these circumstances, bearing in mind the number of letters written by the Applicant to the Employment Tribunal in December and January 2003, that there was nothing at all to prevent her from putting in a Notice of Appeal against the substantive strike out decision within time.  Indeed, no real explanation for that failure has been put before me.

15	She argues that because she has never had a hearing of the merits of her applications before the Employment Tribunal this case is not one where it can be said that she has already had a hearing.  I do not accept that submission.  It is quite clear that she had a two-day hearing on the issue as to whether or not her claim should be struck out by reason of her conduct of the applications.
16	In these circumstances, I am unable to find that there is a good reason for extending time in this case.  I am not persuaded that in adhering to time rules this Tribunal in this case (or any other) is interfering with the Appellant’s human rights, nor any European Directive.

17	In these circumstances I shall dismiss this appeal.