Acetrip Ltd v. Dogra (PRACTICE AND PROCEDURE - Time for Appealing), Court of Appeal - United Kingdom Employment Appeal Tribunal, March 01, 2019,  UKEAT 0329_18_0103
|Resolution Date:||March 01, 2019|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Acetrip Ltd v. Dogra (PRACTICE AND PROCEDURE - Time for Appealing)|
Appeal No. UKEATPA/0329/18/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 21 January 2019
Judgment handed down on
01 March 2019
HIS HONOUR JUDGE AUERBACH
ACETRIP LIMITED APPELLANT
MR ABHISHEK DOGRA RESPONDENT
APPEAL AGAINST REGISTRAR'S ORDER
PRACTICE AND PROCEDURE - Time for Appealing
The appeal to the Employment Appeal Tribunal (``EAT'') was instituted out of time. The Appellant appealed against the Registrar's Decision refusing to extend time.
A consultant working for the Appellant instructed direct-access counsel to draft the Notice of Appeal. An exchange with counsel's clerk led him to believe that counsel or his clerk would deal with the actual filing of the Notice of Appeal as well. He was only informed that counsel was professionally unable to do this, a few days before the last day of the time limit. He was not specifically alerted at that point to the 4pm cut-off time. In all the circumstances, the fact that requisite documents sent to the EAT on the last day arrived at about 4.30pm was excusable.
However, in addition, copies of the ET1 and ET3 were not sent to the EAT at all on that day. They were provided only about four weeks later after the consultant telephoned the EAT to enquire as to progress of the appeal. Notwithstanding that, as the deadline approached, the consultant was also dealing with organising a family funeral, and had to use an agency to scan documents on the last day, the failure to send the ET1 and ET3 that day, or sooner than they were sent, was the result of carelessness which did not amount to a good reason or exceptional circumstances. The extension was therefore refused, and the appeal dismissed.
HIS HONOUR JUDGE AUERBACH
Following a Full Merits Hearing, the Employment Tribunal promulgated a decision upholding claims by the Claimant before it, Mr Dogra, against the Respondent before it, Acetrip Limited, of unfair dismissal because of protected disclosures and the assertion of a statutory right, and for unpaid wages. Acetrip seeks to appeal that decision, on various grounds. I will continue to refer to the parties, as below, as Claimant and Respondent.
The appeal to the EAT was not properly instituted in time. The Registrar refused an application for an extension of time. The Respondent appealed that decision. That appeal came before me at a hearing on 21 January 2019.
The Respondent runs a small Travel Agency and Tour Operator business. Mr Raj Kumar is the Managing Director. His brother, Mr Satish Kumar, was, at the relevant time, a consultant to the business.
Prior to the day of the hearing before me, the Respondent's solicitors had indicated that they were hampered by the fact that Satish Kumar, who had been responsible for organising the substantive appeal to the EAT, was not responding to their communications about the time-extension appeal. So, a witness statement had been tabled instead from Raj Kumar, although his knowledge of relevant events was limited. He was in India, but would be available to be cross-examined by Skype.
However, on the day of the hearing Ms Ling of counsel, who appeared for the Respondent, had Satish Kumar with her. I was told that he had recently returned from the USA and the Respondent now wished to call him as a witness. I had also caused both sides to be provided with a copy of an email on the EAT's file, but which had not hitherto been mentioned, which had been sent by the EAT to Satish Kumar at 18.00 on 23 April 2018. Ms Ling said Satish Kumar's instructions were that he had never received that email.
It was ultimately agreed with both Ms Ling and Mr Lawrence, of counsel, appearing as the Free Representation Unit (``FRU'') representative for the Respondent, that the way forward was to adjourn the hearing to 2pm. This would enable final preparations to be completed, including a written statement from Satish Kumar, and completion of disclosure from his emails. When we reconvened in the afternoon, both counsel confirmed that they were ready and content for Satish Kumar to give evidence, and to proceed with the hearing.
Satish Kumar then gave evidence and was cross-examined. Ms Ling then confirmed that she no longer wished to call Raj Kumar, so we proceeded to oral submissions. I also had the benefit of written skeletons that both counsel had prepared prior to the hearing, and various authorities in addition to the EAT's familiar authorities in this area.
I reserved my decision.
In one further twist, Ms Ling understood that the Court of Appeal was due to hand down its decision in a case concerned with this jurisdiction, the day after this hearing. It was therefore agreed that both counsel should be permitted to table written submissions on the implications of the Court of Appeal's decision, once to hand. I made Orders accordingly. Following the hand-down of that decision - J v K and another  EWCA Civ 5 - written submissions and then reply submissions were tabled on both sides. The second round included a side dispute about what I may call the GMT/BST point, of which more later.
As indicated in the authorities, it fell to me to consider the question of extension of time completely afresh; and in view of how matters unfolded I had a good deal more evidence available to me than the Registrar had available to her. With no disrespect to her, it is therefore unnecessary for me to set out the content of her decision.
The Legal Framework
Rule 3(1) of the Employment Appeal Tribunal Rules 1993 sets out the documents required to institute an appeal. In the case of an appeal from an Employment Tribunal judgment these include copies of the claim and response, or an explanation as to why either is not included. The effect of Rule 3(3) is that, in a case such as the present, the appeal must be instituted within 42 days of the date on which the written Judgment and Reasons were sent to the parties. Rule 37(1A) provides that where something must be done on or before a particular day, it must be done by 4pm on that day. The EAT may exercise the power conferred by Rule 37(1) to extend time for the institution of an appeal, including in a case where it has already expired.
The EAT's Practice Direction (PD) 2013, which was the version in force during the time window for presentation of this appeal, contains provisions concerning the institution of an appeal and the extension of time. These include reference (at paragraph 1.8) to the 4pm cut off for filing an appeal on the last day; and reiteration (at paragraph 3.1) of what must be in, and must accompany, a Notice of Appeal; and reiteration (within section 5) of the 42-day time limit for presenting an appeal and when it begins to run in different types of case.
Section 5 also contains provisions concerning applications for extension of time, including the following at paragraph 5.7:
``In determining whether to extend the time for appealing, particular attention will be paid to whether any good excuse for the delay has been shown and to the guidance contained in the decisions of the EAT and the Court of Appeal, as summarised in cases such as United Arab Emirates v Abdelghafar  ICR 65, Aziz v Bethnal Green City Challenge Co Ltd  IRLR 111 and Jurkowska v HLMAD Ltd  ICR 841.''
The 2018 PD is to similar effect, although it also cites another authority - Muschett v London Borough of Hounslow  ICR 424. I note also that in Green v Mears  EWCA Civ 751 the Court of Appeal has recently confirmed that the principles established by the earlier leading authorities continue properly to govern the EAT's particular approach to applications for extension of time in relation to late appeals to it.
I will consider further, the guidance in the authorities concerning the exercise of the discretion to extend time for the presentation of an appeal, later in this decision.
The Employment Tribunal's Judgment and Reasons were sent to the parties on 12 March 2018 so that (and this was not disputed before me) the period for instituting the appeal expired at 4pm on Monday 23 April 2018. On that day, Satish Kumar, on behalf of the Respondent, sent the following four emails to the EAT from his personal email address.
First, there was an email timed as sent at 15.14 on the Respondent's hard copy printout, and timed as received by the EAT, on its hard copy printout, at 16.14. That email had the subject line ``Appeal'' and read: ``Please find attached a copy of our Appeal part 1. Part 2 follows this email.'' Attached to that email was the Notice of Appeal, including grounds of appeal, consisting of three pages, together with the first two pages of the Employment Tribunal's decision, consisting of the Judgment and the first page of the Reasons.
Then, he sent a further email, timed as sent at 15.27 and timed as received at 16.28. That had the subject line: ``Appeal part 2'' and began: ``This is a continuation of our earlier email.'' It also asked a question about fees (although, of course, those no longer applied). That email attached the remaining pages of the Employment Tribunal's Reasons.
The third email was timed as sent at 18.16 and received at 19.16. That had the heading: ``Fw: page 31 to 43 / Part 4 Appeal Dogra v Acetrip.'' It read: ``This is the final part 4 of our supporting documents. Please accept our apologies for any inconvenience caused.'' Attached to it was a copy of an application that the Claimant had made, in the course of the Tribunal litigation in 2016, to amend his claim, copies of two Decisions arising from a Preliminary Hearing that had been conducted by the Employment Tribunal in November 2016, and also what appears to have been one page from some version of the Grounds of Resistance in...
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