Appeal No.UKEATPA/0903/08/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 March 2009

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR A G MITCHELL	APPELLANT

BARRATT HOMES (LEEDS) LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER
And RULE 3(10) APPLICATION

	APPEARANCES

For the Appellant	MR A G MITCHELL
(The Appellant in Person)	
For the Respondent	No appearance or representation by or on behalf of the Respondent	

SUMMARY
PRACTICE AND PROCEDURE:  Time for appealing / new evidence on appeal
The Claimant was 2 months late in applying for a Rule 3(10) hearing expressing dissatisfaction with a Rule 3 opinion and the Registrar refused to extend time. He had instead applied to the Court of Appeal which rejected his application as he had not exhausted the EAT procedure. His appeal against the Registrar was in exceptionally allowed. His application to adduce fresh evidence was refused. His Notice of Appeal under Rule 3(10) had no prospect of success.

HIS HONOUR JUDGE McMULLEN QC
1.	This is an appeal from the decision of the Registrar not to allow an extension of time so as to enable the Claimant, in the proceedings below, to launch an appeal against the Respondent.

2.	The appeal itself is against the rejection of his claim by an Employment Tribunal sitting at Leeds over four days registered with reasons on 16 June 2008 under the chairmanship of regional Employment Judge Sneath.

3.	The Claimant had only one claim to make which was that he had been dismissed for making a disclosure protected by the whistle-blowing provisions inserted into the Employment Rights Act 1996.  That was because he had been employed by the Respondent for less than one year and so a claim of ordinary unfair dismissal would not lie.

4.	Nevertheless, the Employment Tribunal made a number of observations about the way in which the Claimant was treated which might have been relevant had he made a complaint of ordinary unfair dismissal.  Further, the Tribunal had in mind that it was still for the employer to show the reason for dismissal in this case provided the Claimant produced some evidence in support of his case that it was for making a protected disclosure.  That is the result of the judgment in Kuzel v Roche Products Ltd [2008] EWCA 380 (CA).

5.	The Claimant sought to appeal.  He lodged a Notice of Appeal in accordance with the Practice Direction and the case came for paper sifts before HHJ Pugsley.  My approach to questions under this procedure is in a judgment I gave in Heritage v South East England Development Agency EATPA/0006/08/DA, paragraphs 1 to 13 which should be read with this judgment.  

6.	The judge’s opinion was sent to the Claimant on 1 October 2008 and it contained the following,

“The EAT can only deal with errors of law.  This is a considered and careful Judgment and, although I appreciate the Appellant does not agree with its findings, I can detect no issue of law which arises.  The Employment Judge was entitled to dismiss the application for review.”

7.	The letter containing the opinion was sent by the Registrar and attention is drawn to Rule 3(8) and Rule 3(10).  These were copied to the Claimant with the Registrar’s letter.  In short it gives, as I have described in Haritaki, two approaches available thereafter; the first to submit a fresh Notice of Appeal and the second to have the case put before a judge, usually at an oral hearing.

8.	The Claimant decided he would appeal to the Court of Appeal and took various steps, including a step on 20 October that is within the 28 days that was vouchsafed to him to bring an application under Rule 3(10).  Having contacted the EAT he was told by a case manager here that it was not necessary for permission to appeal to be obtained from the EAT in order to apply for permission to the Court of Appeal.  That information was correctly given.

9.	The Claimant also made contact with Her Majesty’s Court Service and there was an exchange of correspondence between the Court of Appeal Civil Division, the Court of Appeal Criminal Division and the Claimant about his Notice of Appeal.  The upshot was that on 18 December 2008, the Registrar of the Court of Appeal said this:

“We do not have jurisdiction according to the documents that have been filed.  The EAT Registrar held that the Notice of Appeal discloses no reasonable grounds for bringing the appeal under para 3(7) of the EAT Rules 1993.  The Applicant could have applied for an oral hearing before EAT under para 3(10) of EAT Rules 1993.  No indication from the papers that was done.”

10.	So the Claimant sought to bring his Rule 3(10) application to life at the EAT.  Although the EAT was open in the period running up to Christmas, this was lodged on 6 January 2009, some two months late, and I take no point about whether it could have been lodged earlier than 6 January, whether it was 22 December 2008, which would be the following day, or 6 January appears to make little difference to me given the amount of time which had passed since the original deadline of 28 October 2008.

11.	An extension of time was sought from the Registrar and she refused it.  She gave her reasons by Order on 27 January 2008.  No criticism is made of those reasons and of the authorities which the Registrar cites. In particular Morrison v Hillcrest Care Ltd [2005] EWCA Civ 1378, makes clear that the strict regime for Notices of Appeal (that is 42 days) applies also in respect of a revisiting of the claim under Rule 3(10).  The Registrar said this:

“It is not an acceptable reason for delay that the Appellant appealed to the Court of Appeal by mistake.  It is difficult to see how such a mistake could arise as he was provided with all the relevant information to enable him to seek a reconsideration of the Rule 3(7) decision.  He chose not to exhaust his options within the EAT.  He had time to seek advice on this matter and was obviously capable of doing research himself as he is retraining at university.  Many Appellants act in this court without legal representation, often struggling with illness and other problems, but manage to follow the correct procedures.  This situation is virtually unknown at the EAT because of the clarity of the information that the EAT provides.  Six weeks is a generous amount of time in which to appeal and the Appellant was given a further four weeks by the rules but appears to have decided that he would not pursue the matter further through the EAT.  He is not entitled therefore to take up that option when his alternative course has failed.”

She found no exceptional reason.

12.	Since that time the Claimant has appealed, in accordance with the rules, against her ruling not to accept the application under Rule 3(10).  He has also applied for the adduction of new evidence which principally consists of a photograph relevant to part of the dispute in the case.

13.	The approach I have taken today is first to consider whether or not I should extend time, the discretion being mine hearing this afresh and, if so, whether the application to adduce new evidence should succeed.

14.	During the course of Mr Mitchell’s address to me today, the underlying dispute was ventilated.  It is, of course, open to a judge hearing an application on appeal from the Registrar on time to hear something of the merits; see the judgment of Sir Christopher Staughton in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111.  It will often be of little value but in certain cases it may be relevant.

15.	It occurred to me that if I were to allow the extension of time the Claimant would be back in court with a Rule 3(10) hearing properly constituted at some stage in the future.  The Respondent has no status in such proceedings.

16.	As a matter of practicality I invited Mr Mitchell to address me along the lines that he would were this a properly constituted Rule 3(10) hearing. He took a practical approach to this, having had a little time to collect his thoughts.  He has put before me the material which would be live on a Rule 3(10).  I propose, therefore, to deal with this case holistically.

The facts
17.	The facts are unusual.  They arise out of a jurisdiction for the protection of wildlife which is vested in the Magistrate’s Court creating an offence under the Wildlife and Countryside Act 1981 of disturbing various forms of wildlife.  In this case it is bats.

18.	The contention by the Claimant is that he, as a manager of a building site for major home builders Barratts in 2006, noted infestation of bats following a report by bricklayers who had seen one or two.  The response of management was to say that they would destroy the nesting, which would be an offence under the Act.

19.	Meanwhile, concerns were being expressed by the Respondent about the performance of the Claimant and he was subject to a disciplinary hearing on 14 December 2006 when he was dismissed for six reasons, broadly speaking to do with his performance.  His case was that he had made a protected disclosure and the reason for his dismissal was that and was not to do with his performance.

20.	The Tribunal made robust and cogently-reasoned findings on the facts against the Claimant’s propositions and in terms said it did not believe him.  It preferred the evidence of the Respondent and, although dealing with it unnecessarily as a matter that might arise under the ordinary unfair dismissal jurisdiction, made criticisms of the Respondent.

21.	Part of the evidence before the Employment Tribunal was an investigation conducted by the police; I am told a specialist police officer dealing with wildlife in the Leeds area and an environmental health officer who examined the buildings under construction where the Claimant said he had seen 30 to 50 bats infesting.  They did so upon the Claimant having made a statement to the police but they found no evidence whatever of bats.

22.	The finding by the Tribunal, therefore, was that the Claimant had not seen the bats in the building therefore his account of them being destroyed would fail. The only evidence was that bricklayers had seen one or two bats flying around but that does not constitute an allegation that the Respondent has destroyed their habitat which would be the impact of measures taken contrary to the 1981 Act.

23.	The Tribunal went on to find that there was ample material upon which, were this an ordinary unfair dismissal, the reason given by the Respondent would be “the poor performance” of the Claimant.  In the light of that material the claim was dismissed.

24.	Since then the Claimant has come forward with an aerial photograph which he invites the EAT to take in as a new evidence.  I would be prepared to accept this was not available to the Claimant in advance.  He came upon it by chance in a perfectly proper way. It shows the relevant buildings on 9 December 2006 with roofs on them and it is said that this casts doubt on what was found by the Tribunal in relation to roofing on 7 December 2006.

25.	Doing the best I can for the purposes of this hearing, I cannot say that this meets the test necessary for evidence to be adduced afresh before the EAT as having a significant effect on the case.  I am prepared to accept that it could not have been obtained before and that it is apparently credible of the state of affairs on 9 December, but with respect to the industry of Mr Mitchell in pursuing this case it misses the point.  The point is: was there a disclosure by the Claimant that there was to be destruction of bats’ habitat in those buildings by officers of the Respondent at a time some three or four weeks before this photograph was taken?  As to that, Mr Mitchell accepts before me, very fairly if I may say so, that the Tribunal had polarised evidence from himself, on the one hand and the management on the other, and the Tribunal had to make a choice.

26.	I have no doubt Mr Mitchell feels very strongly about the way in which he was treated but even with the benefit of this new material the findings by the Tribunal are robust and firmly presented based upon evidence which it heard and I can see no error of law in its approach.

27.	Thus, the conclusion which I come to is that this case should go no further.  The precise route which I take is this; I do not accept as an excuse from the Claimant that he made a mistake which should entitle him to an extension of time to apply under Rule 3(10).  Under the normal rules, as is most recently affirmed by the Court of Appeal in Jurkowska v Hlmad Ltd [2008] EWCA Civ 231, a frank and candid explanation for the delay is required.  I accept that has occurred.  His dealings with the Court of Appeal show that he was putting matters to it within the 28 days necessary under Rule 3(10)  but it is not an excuse for him to go to the Court of Appeal when he should be in the EAT.  I have already ruled recently that applying to lodge a Notice of Appeal in the Employment Tribunal is not an excuse either, albeit it is an explanation.

28.	The approach of the office of the Court of Appeal surprises me because an appeal to the Court of Appeal under section 37 of the Employment Tribunals Act lies in respect of an order or decision of the EAT.  It is true that the vehicle for conveying a judge’s opinion under Rule 3 on the sift is a letter from the Registrar, but while it may not be an order it certainly represents a decision made by Judge Pugsley in accordance with the opinion which he had expressed.  He has made three decisions: that the findings disclosed no error of law, that the Employment Judge, on review, was entitled to dismiss that application, and that no further action would be taken upon the Notice of Appeal.

29.	I agree that the appropriate step for a Claimant dissatisfied with that kind of opinion to take is to apply under Rule 3(8) and 3(10).  It is so much more convenient than going to the Court of Appeal and does not risk the attraction of an entry fee of £400 and the possibility of exposure to the other side’s costs but the question is: is he precluded from going there to ask for permission to appeal against the opinion of HHJ Pugsley?  In the absence of full argument about this it seems to me that he is entitled to ask for that, ill-advised as it may be. The Registrar of the Court of Appeal has not made clear the basis upon which the Court of Appeal would decline jurisdiction.

30.	That being so, if the court had said to the Claimant on 20 October within the 28-day period that it did not have jurisdiction and he had to go to the EAT he would be back here and would be in time.  So, I do accept his excuse.  He should have known better for the first three weeks where to go but when he went to the Court of Appeal and until its conclusion he was entitled to take the view that he was in the right place.  The Court of Appeal has told him he should be at the EAT. Since he did not have access to the Court of Appeal he obviously wanted to come back here and so I would be prepared to allow his appeal against the Registrar’s decision in relation to his Rule 3(10) application for those exceptional reasons.

31.	That means that the hearing which I have conducted has now been under Rule 3(10) since, as we both agree, this is an expedient way of getting a decision on the merits of the point the Claimant wishes to raise.  He will be disappointed to hear my view that this case should go no further.  I am satisfied that this examination now four times, twice in the Employment Tribunal and twice in the EAT, has been sufficient of the Claimant’s case and I have taken on board, for the purposes of my hearing, the new evidence.  I have not given the opportunity to the Respondent to oppose it but since I am finding against the Claimant that omission is understandable.

32.	An application has been made for permission to take this to the Court of Appeal.  The approach I take to this Rule 3(10) application is the same as I take to the application for permission.  Since this case has no reasonable prospect of success in the EAT it does not get better in the Court of Appeal nor is there a compelling reason for this interim appeal in the EAT to be taken there.  This was a question of fact and credibility determined by the Employment Tribunal and I refuse permission.