The Governing Body of Tywyn Primary School v Aplin, Court of Appeal - United Kingdom Employment Appeal Tribunal, October 10, 2018, [2018] UKEAT 0298_17_1010

Resolution Date:October 10, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:The Governing Body of Tywyn Primary School v Aplin
 
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Copyright 2018

Appeal No. UKEAT/0298/17/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 27 June 2018

Judgment handed down on 10 October 2018

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

THE GOVERNING BODY OF TYWYN PRIMARY SCHOOL APPELLANT

MR M APLIN RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR'S ORDER

UKEAT/0298/17/LA

APPEARANCES

SUMMARY

PRACTICE AND PROCEDURE - Appearance/response

In circumstances in which an Appellant is to be understood as consenting to an extension of time for lodging a response to the appeal and the Registrar of the EAT making an Order by consent, the Order is to be construed as granting an extension of time only for the response to the appeal. The extension was rightly held by the Registrar not to apply to a cross-appeal.

The Registrar erred in dismissing a subsequent application for extension of time to lodge a cross-appeal by applying the strict approach to time for appealing to cross-appeals. There are material differences in the Rules and Practice Directions applicable to appeals and cross-appeals. Whilst they may be juridically comparable they differ in practice. The reactive nature of a cross-appeal explained by Langstaff P in Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14 and policy considerations illustrate why the strict approach to extensions of time for appeals does not apply to cross-appeals. Slingsby v Griffith Smith Solicitors UKEAT/0619/07 not followed. United Arab Emirates v Abdelghafar [1995] IRLR 243 considered. Decision of Registrar not to extend time for cross-appeal set aside. Using powers under Employment Tribunals Act 1996 section 35 application for extension of time in which to deliver a cross-appeal made on 19 January 2018 allowed.

UKEAT/0298/17/LA

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THE HONOURABLE MRS JUSTICE SLADE DBE

  1. Mr Aplin, the Respondent to an appeal by his former employers, The Governing Body of Tywyn Primary School (``the school''), appeals from the refusal of Miss Daly, the Registrar of the Employment Appeal Tribunal (``the Registrar''), by Order seal date 15 February 2018 to extend time for service of his cross-appeal.

  2. After a period of acting up in that role, Mr Aplin was appointed Head Teacher at Tywyn Primary School. He was suspended by the school on 1 September 2015 after they were notified that Mr Aplin had consensual sexual intercourse with two 17 year old boys after meeting them through an internet dating website. The website required joining individuals to certify that they are at least 18 years of age. Mr Aplin's case was that he believed they were. The boys were not pupils of the school. Following disciplinary proceedings taken against him, Mr Aplin resigned on 27 August 2016.

  3. Mr Aplin brought claims of unfair dismissal and sexual orientation discrimination against the school. By a Judgment with Reasons sent to the parties on 28 September 2017, the Employment Tribunal, Employment Judge Beard sitting with members (Mr Charles and Mrs Humphries), held that the claims of unfair dismissal and sexual orientation discrimination were well founded.

  4. By Notice of Appeal of 25 October 2017, the school appealed from the findings of unfair dismissal and sexual orientation discrimination. By a Respondent's Answer dated 2 January 2018, Mr Aplin resists the appeal and seeks to cross-appeal. By paragraph 4 of the Answer received by the Employment Appeal Tribunal (``EAT'') on 3 January 2018 it is stated:

    ``4. The Respondent cross-appeals from:

  5. The Tribunal's decision at §40.6.8 that there were non-discriminatory explanations for the approach of the [sic] Mr Hodges, the LEA officers and the Appellant's Governors, as described in paragraphs §40.6.5 - §40.6.7.''

  6. By email of 19 February 2018, Mr Aplin appeals the decision of the Registrar of 15 February 2018 to refuse his application of 19 January 2018 to extend time in which to file a cross-appeal. The Registrar held that the time to file a cross-appeal had expired on 21 December 2017.

  7. In outline the events leading up to the Order of 15 February 2018 are as follows. By Order of 7 December 2017, HHJ Tucker ordered that the appeal by the school be set down for a Full Hearing. Paragraph 3 of the Order of 7 December 2017 provided:

    ``Within 14 days of the seal date of this Order, the Respondent must lodge with the Employment Appeal Tribunal and serve on the Appellant an Answer, and if such Answer include a cross-appeal should forthwith apply to the Employment Appeal Tribunal on paper on notice to the Appellant for directions as to the hearing or disposal of such cross-appeal.''

  8. By email of 13 December 2017 Mr Aplin asked for ``an extension to the time given to prepare documentation for an appeal hearing.'' He asked for an extra two weeks over the Christmas period. The reason for the request was that he had instructed counsel and:

    ``Counsel informs me due to the complexity of the case and his ongoing case load up to the 21st [December], that devoting the required time is difficult at this stage and I would like to ensure that for natural justice that this time would be afforded.''

    By email later that day the EAT wrote to the school enclosing Mr Aplin's email applying for an extension of time in which to lodge an Answer to the appeal. The school were asked for their submissions in response including their ``agreement or otherwise'' to the application. The school replied on 14 December 2017:

    ``... the Appellant has no objection to the extension of time sought to file an answer to the appeal until 4th January.''

  9. An Order of 15 December 2017 by the Registrar provided:

    ``UPON the application of the Respondent by e-mail of the 13th day of December 2017 for an extension of time in which to file an Answer to the Notice of Appeal

    AND BY CONSENT

    IT IS ORDERED that the aforesaid application be granted and that time in which to file an Answer be extended to 4.00pm on the 4th day of January 2018.''

  10. An Answer containing a cross-appeal was received by the EAT on 3 January 2018. By letter dated 16 January 2018 Mr Aplin was informed by the EAT that the Registrar directed that the Order of 15 December 2017 was clear that time to file an Answer was extended. However, the Answer contained a cross-appeal and that Mr Aplin would have to make an application to extend time if he wished to pursue it.

  11. By email of 19 January 2018, Mr Aplin applied for an extension of time to present his cross-appeal. He stated that the form of Answer, Form 3, contains a section for a cross-appeal. He had understood that when time was extended to lodge the Answer this included the cross-appeal. He had asked for an extra two weeks to prepare documentation for an appeal hearing. He said there was no prejudice to the school in extending time to cross-appeal whereas he would be prejudiced by being denied the extension. He said that the cross-appeal has real merit.

  12. The school replied on 24 January 2018 to the application for an extension of time to cross-appeal. The submissions were drafted by Mr Howells, counsel who appeared at the hearing of the appeal before me. It was submitted that the distinction between an Answer and a cross-appeal is well defined. Reliance was also placed on the judgment of the EAT in Slingsby v Griffith Smith Solicitors [2009] All ER (D) 150 in which it was said to have been confirmed that the strict rules for lodging appeals in time apply also to cross-appeals. Further the Employment Appeal Tribunal Practice Direction (``EAT PD'') paragraph 12.2 makes separate reference to the Respondent's Answer and a cross-appeal. It was said that in this case time had been extended by the Order of 15 December 2017 for the lodging of the Answer but not for the cross-appeal. Further, it was said that the application for an extension of time for lodging the cross-appeal should be determined in accordance with the strict rules for appeals set out in United Arab Emirates v Abdelghafar [1995] IRLR 243 and Jurkowska v HLMAD Ltd [2008] IRLR 430. It was said that the explanations offered by Mr Aplin, that he misunderstood the Order extending time, that he was a litigant in person and that he would be prejudiced by being denied an extension of time within which to lodge his cross-appeal, were not good reasons for granting an extension.

  13. By Order seal date 15 February 2018, the Registrar refused Mr Aplin's application of 19 January 2018 for an extension of time in which to file a cross-appeal.

    The reasons for refusing the application for an extension of time for lodging a cross-appeal

  14. The Registrar of the EAT, Miss Daly, referred to the importance of adhering to time limits and that they will be relaxed only in rare and exceptional circumstances. The Registrar referred to paragraph 5.7 of the EAT PD. She also relied upon the judgment of the EAT in Slingsby in which HHJ Burke QC held that the strict principles which apply to the grant of an extension of time for the institution...

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