A Anghel v Middlesex University

I will refer to the parties as they were in the employment tribunal, as claimant and respondent. The claimant was employed by the respondent until her employment came to an end in August 2018. Following that, solicitors presented a claim to the employment tribunal on her behalf including complaints of unfair dismissal and of harassment. The matter was defended.

In brief summary the respondent’s case was that the claimant’s employment ended upon the expiry of a fixed term contract and that she was fairly dismissed for redundancy. The claimant’s case was that the termination of her employment had been engineered by Professor Westley, with whom she had previously for a time had a personal relationship. This was claimed to amount to harassment contrary to section 26 Equality Act 2010. There were also a number of further complaints of alleged incidents or conduct over a number of years, said to amount to harassment by Professor Westley.

There was a full merits hearing in October and November 2020 before Employment Judge Quill, Ms Brosnan and Mr English, sitting at Watford. The claimant represented herself. The respondent was represented by Mr Gill of counsel. The tribunal gave an oral decision in which it dismissed all of the claimant’s complaints. The tribunal’s written judgment and reasons were sent to the parties on 1 December 2020. In very brief summary, it made detailed findings of fact about the course of both the working and personal relationships between the claimant and Professor Westley. It found that they had had what was described as a dating relationship for a time in 2015. In light of its findings of fact, however, it dismissed all of the section 26 complaints. It upheld the respondent’s case as to the reason why the claimant’s contract was not renewed, and found that that decision was not in any way influenced by Professor Westley. It found the dismissal to be otherwise fair.

The claimant applied to the employment tribunal for a reconsideration. By a decision sent to the parties on 5 January 2021 the judge refused that application on the basis that, for reasons that he gave, there was no reasonable prospect of the original decision being varied or revoked. The claimant seeks to appeal against the decision dismissing the reconsideration application.

By a decision sealed on 12 November 2021 Ms Amanda-Jane Field, acting on behalf of the EAT’s Registrar, decided that the proposed appeal had been properly instituted one day out of time and refused the claimant’s application for an extension of time. The claimant appealed against that decision and that appeal came before me. At the hearing of it, the claimant appeared in person and the respondent was represented by Mr Gill. This is my reserved decision.

In accordance with the established approach, although this is described as an appeal from Registrar’s order, I am deciding the matter entirely afresh, based on my consideration of the materials, information and arguments presented to me. I have taken account of the skeleton arguments that both parties put in prior to the hearing, and the oral arguments and discussion at the hearing. I also had a bundle of documents and supplementary documents and was referred to a number of legal authorities.

In correspondence prior to the hearing, the claimant had indicated that she felt at an unfair disadvantage as a litigant in person, and had complained that the respondent’s solicitors had acted unfairly in particular in view of the volume of material in the legal authorities bundle that they had sent her. I explained to her that, for obvious reasons, I could not advise her, or assist her to present her case as such. However, I explained how the hearing would be conducted and I indicated that, should she be unclear or concerned about any practical or procedural matter she should raise it with me. I also explained to her that it was not only proper, but also fair, for the respondent’s solicitors to have provided her with copies of the legal authorities to which their counsel intended to refer.

In his skeleton argument Mr Gill had indicated that the respondent objected to the inclusion in the supplementary bundle, by the claimant, of certain documents, on the basis that they were irrelevant. However, I considered that the appropriate course was not to remove them, but to allow both sides to advance their arguments as to why they were relevant or not.

The chronology of events in the litigation, material to the arguments raised before me, is this.

As I have already noted, the employment tribunal’s decision arising from the substantive hearing of the claimant’s claims was sent to the parties on 1 December 2020. In the usual way this was accompanied by a letter from the tribunal referring to the booklet “The Judgment” and highlighting the strict deadlines for appealing and/or requesting a reconsideration.

On 13 December 2020 the claimant emailed the tribunal, copying in the respondent’s solicitors, stating that she had only received the decision that day and requesting a reconsideration. She addressed her email to the judge, and also stated that she had complained of judicial misconduct on his part. She requested that he recuse himself and for another judge to reconsider the decision. She went on to set out lists of questions that she wanted answered by the judge and by the respondent.

The Employment Tribunals Rules of Procedure 2013 provide, at rule 72, that, where an application for reconsideration relates to a decision of a three-person tribunal, it will in the first instance be considered by the judge. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked then the application shall be refused and the tribunal shall inform the parties of that.

Written decisions of an employment tribunal are signed by the judge and then passed to the administration for processing and sending to the parties. The decision will usually record the date that the judge signed it, and will always record the date on which it was sent to the parties, which will commonly be a later date, and is the relevant date for the purposes of time limits. In this case the judge signed the judgment and reasons refusing the claimant’s application for reconsideration on 21 December 2020. On 5 January 2021 it was sent to the parties, and that was the date from which time for any appeal ran. The same document included the judge’s decision refusing an application by the respondent for correction of the written reasons for the substantive decision.

The judge’s reasons for refusal of the reconsideration application read as follows.

“There is no reasonable prospect of the original decision being varied or revoked, because

(i)

no application for recusal was made during the hearing, and there were then, and are now, no grounds for the judge to recuse himself.

(ii)

other than alleging bias, and asserting that a different panel might have made different decisions, no grounds for reconsideration are stated by the Claimant.

(iii)

The tribunal made its findings of fact, and those are stated in the written reasons, and on the basis of those findings of fact, there is no reasonable prospect of any of the decisions on the individual allegations being changed.”

On 6 January 2021 the employment tribunal emailed the claimant, copying in the respondent’s representative, informing her that, as well as issuing his judgment on the reconsideration application, the judge had referred the claimant’s email of 13 December 2020 to the Regional Employment Judge. On 8 January 2021 REJ Foxwell wrote to the claimant an emailed letter which read as follows.

“Your email of 13 December 2020 has been referred to me in my capacity as the Regional Employment Judge for the South-East Region. I deferred writing to you about it until Employment Judge Quill had had an opportunity to consider your application for reconsideration. I have seen from the Tribunal’s file that his judgment concerning this was sent to you on 5 January 2021.

You ask a series of questions of Judge Quill in your email of 13 December 2020 and additional questions of the respondent and its representatives.

Judges do not answer questions from parties and Judge Quill will not do so in this case. He will, of course, answer any questions posed to him by the Employment Appeal Tribunal insofar as it relates to any issue in an appeal should that eventually arise.”

On 18 January 2021 the claimant emailed the REJ as follows:

“Thank you for your letter.

I am still awaiting for your formal response to my formal complaint against judicial misconduct, sent to the President of Employment Tribunal on 18.1.2020. With your response please provide proof of the investigation you conducted.

You mention in your letter from last week that you allowed E J Quill time to reconsider his decision. However, it looks like he did not spend any time on that.

In his response not only he ignored my points completely, yet again, but dismissed to reconsider his decision. He did not offer any arguments.

Please let me know this week if there is any point waiting for the ET to do their job on this case so I can take it to higher courts. Enough time has been wasted at this level.

It looks like the ET developed into a mob organisation together with the institutions they protect. Your own state, with your own rules. You’re either in or out. There is on justice and only one winner.

As for whoever had the curiosity to check what I am going to reveal to the press, please have patience.

All the best.”

On 9 February 2021 the claimant sent the EAT an email with an attachment. She wrote: “Please find attached a completed form of appeal and related documents. All documents are compressed in an archive folder.” On 16 February 2021 the EAT’s administration emailed the claimant to inform her that they were unable to open the attachment and asking her to send it in a different format. The claimant then sent an email at 14.39 that same day with several separate files attached. On 17 February 2021 at 13.21 the EAT emailed the claimant that the grounds of claim document referred to in the claim form was missing. At 13.49 that day the claimant emailed the EAT in reply, stating: “Many apologies, I thought the grounds were included in the ET1. I’ve attached the Claimant’s grounds of complaint.” She attached that document.

On 16 April 2021 the EAT’s administration wrote to the claimant to inform her that, because the last day properly to institute an appeal was 16 February 2021, but the grounds of claim document had only been sent to the EAT on 17 February 2021, the appeal had been properly instituted one day out of time. She was asked whether she wished to apply for an extension of time. By a letter emailed on 27 April 2021 the claimant did so. That letter read as follows.

“I am writing in response to your letter dated 16 April 2021. I understand that my appeal was lodged a day late. Please accept this as my application for extension of time.

My reasons for application are as follows:

1)

I understand that the reason why the appeal was registered one day late is because I submitted an incomplete file of the Copy of Grounds of Claim. That was a genuine error on my part. I am representing myself as a lay person without any legal representation. Preparing the appeal was overwhelming for me and I genuinely did not notice the copy I included in the appeal bundle was missing information. However, as soon as I received notification of this matter, I immediately sent the correct file.

2)

I would have sent the appeal days sooner if I had not been misled by Judge Foxwell in their correspondence in early January in which I was told that Judge Quill is reconsidering his judgment and asked me to wait for it. However, the judge did not reconsider his judgment and after days of wait just to hear that nothing changed I understood I was sabotaged in the hope that I would not get to submit the appeal on time.

3)

I am not asking for anything but my human right for a fair public hearing. Having gone through the trial and the shocking decision at the end of it triggered a traumatic response for me. I have spent the past few months dealing with post-traumatic symptoms, including traumatic memories of the abuse I suffered. For me it is important to have the opportunity to bring the matter to public attention under the protection of justice. I need to speak the truth. I think that this could save a woman’s life. I feel responsible and I think that if justice does not allow the truth to be told publicly, then it is also responsible for the women who fall victim of abuse.

I believe that accepting my appeal is a matter of life and death.”

In the usual way, comments were sought from the respondent, whose solicitors opposed the application, and there was then a final response from the claimant. The Registrar thereafter came to her decision. Following that the claimant exercised her right to appeal the matter to a judge.

Pursuant to rule 3 of the Employment Appeal Tribunal Rules 1993, in a case such as the present, the appeal was required to be properly instituted within 42 days from the date on which the decision, by way of the written judgment and reasons, was sent to the parties. Rule 37(1A) provides that where an act is required to be done by or on a particular day, it must be done by 4pm that day.

Rule 3 also provides that, in order for the appeal to be properly instituted, a notice of appeal in the requisite form must be served, together, in a case such as the present, with copies of the tribunal’s written judgment and reasons, the claim and the response. If any of the claim, the response or the written reasons is not included, there must be an explanation provided as to why not.

Paragraph 3 of the Practice Direction (Employment Appeal Tribunal – Procedure) 2018 repeats and expands upon these provisions. The claim form in the employment tribunal, form ET1, includes at box 8.2 a space for the claimant to set out the background details of their claim. It is common for claimants not to set out those details within the box itself, but instead to cross-refer in that box to an attached document setting out their grounds or particulars of claim. In those cases that attachment forms part of the claim. The EAT’s Practice Direction accordingly spells out at paragraph 3.1, in relation to the documents required to institute an appeal, that the claim means “the form ET1 and any attached grounds”, and the response means “the form ET3 and any attached grounds.” Paragraph 4 reiterates the position under the rules regarding time for instituting an appeal.

Pursuant to Rule 37(1) the EAT has the power to extend the time limit for the institution of an appeal. There is a body of authority establishing guidance on the exercise of that power. The leading case remains United Arab Emirates v Abdelghafar [1995] ICR 65. Points of guidance set out in that decision, and a number of other authorities, have been confirmed as being of continuing validity and application by the Court of Appeal in Green v Mears Limited [2019] ICR 771. Points emerging from this body of authority include, in summary, the following.

Observance of time limits is important to certainty and finality in litigation. There is no automatic right to an extension of time. The EAT, as an appellate court, takes a strict approach to applications for extension of time, taking account of the fact that the matter will already have been the subject of a first instance decision, and the interest of finality in litigation. The time limit for appealing of 42 days is a generous one. It is the responsibility of the party seeking to appeal to ensure that the notice of appeal, together with all required documents, are duly presented within that time limit. It is not the duty of the EAT or its staff, either before or after the time limit expires, to alert a party to defects in compliance, or to do so within a particular time scale. See for example Fincham v Alpha Grove Community Trust, UKEATPA/0993/18 at [23].

In principle litigants in person are not entitled to any greater indulgence, simply on that account, than those who are professionally represented. In principle the same approach applies in cases where the notice of appeal has only been presented after the time limit has expired, and in cases in which one or more of the required documents have been provided late.

In every case the EAT will need to consider whether there has been a full, honest and acceptable explanation for the delay in instituting the appeal or presenting the required document as part of it. Error, oversight, or carelessness are not ordinarily acceptable excuses. Nor are ignorance of the time limit or what documents are required to properly institute an appeal. These matters are clearly explained in materials to which parties are signposted when judgments are sent out, and which are readily available on the internet. The length of the delay may be relevant, but a delay of hours, minutes or even seconds may be fatal. The fact that the other party may not be prejudiced by a very short delay is not a sufficient reason by itself to extend time. The potential merits of the proposed grounds of appeal will not usually be relevant, although they can be, for example where they are patently very weak. In some cases there may be some other compelling exceptional reason to extend time, despite the lack of an acceptable excuse, but such cases are rare and exceptional.

I turn first to the question of whether this proposed appeal was properly instituted in time or out of time. As the written judgment and reasons on the reconsideration application was sent to the parties on 5 January 2021, the final day for an appeal against it to be properly instituted was 16 February 2021. More precisely, it had to be properly instituted by 4pm that day.

In this case, box 8.2 of the claim form referred the reader to the attached grounds of claim. That document ran to 76 paragraphs. It formed part of the claim and was an essential document that needed to be provided to the EAT in order for the claim to be properly instituted. As I have noted the claimant’s email of 9 February 2021 had an attachment which the EAT was not able to open. But the claimant has, in any event, never suggested that within that attachment was a copy of the grounds of claim document. During the course of the hearing before me, she confirmed to me that it was not part of that attachment. I note also that the email of 9 February 2021 did not itself put forward any explanation for why the claimant had not at that stage provided a copy of that document to the EAT.

The email sent by the claimant on 16 February 2021 with individual attachments also did not include the grounds of claim document among them. It also did not refer to the absence of that document or provide any explanation for the failure to provide it.

That document was not provided to the EAT until the claimant sent her email of 17 February 2021. This is not a case where the document had been provided, but, owing to an error, a single unimportant page was missing. Until then the whole document was missing, nor had an explanation for its absence been given in time. The appeal was therefore not properly instituted until that email was received, at around 13.49 that day. Accordingly, it was properly instituted one day out of time.

I therefore turn to the question of whether time should be extended. I have already set out what the claimant wrote in her initial correspondence with the EAT after the absence of the grounds of claim document was raised with her, and then in her application for an extension of time, about why the document was not provided in time, and why time should be extended. She developed her arguments in her written skeleton for this hearing and in oral submissions at the hearing.

This is not a case where the claimant has ever claimed to have been ignorant of the time limit, or ignorant of the fact that the grounds of claim formed part of the required documentation. In any event, as I have noted, ignorance of these things is not ordinarily an acceptable excuse. The “Judgment” booklet, the EAT’s rules and practice direction, and other materials readily available on the internet and elsewhere, all make clear what is required and by when, in language accessible to lay people. They highlight the importance of observing the strict time limits. The 42-day time limit allows ample time for a notice of appeal to be prepared and the required documents to be assembled, including by a litigant in person.

Nor is this a case where the claimant has ever claimed that she did not have a copy of the grounds of claim, or could not get hold of one in time. The reason why the grounds of claim document was not sent to the EAT, either within the unopenable attachment to the email of 9 February 2021, or among the attachments to her email of 16 February 2021, was because the claimant made a mistake. As she stated in her email of 17 February 2021: “I thought the grounds were included in the ET1.” As she observed in paragraph 1 of her submission emailed to the EAT on 27 April 2021, that was “a genuine error on my part”. She said the same thing again, in so many words, during the course of the hearing of the appeal before me. I accept that factual explanation.

In short, the claimant knew that there had been a lengthy grounds of claim document with the completed ET1 form. She knew that this was one of the documents that she needed to send to the EAT in order for her appeal to be properly instituted, as well as the ET1 form. However, she failed to send it with either of those emails, because she assumed that it was included within the attachment labelled ET1 that formed part of the compressed single file attached to her email of 9 February, and which was one of the documents attached to her email of 16 February 2021. But she plainly made that assumption without checking. That is also plainly why she offered no explanation to the EAT for the omission of that document, in the emails of 9 or 16 February 2021. At that point, on account of her error, and her failure to check the position, she did not realise that anything was missing.

The claimant has referred to the fact that the original claim to the employment tribunal was presented by solicitors. I understand her point to be that the form ET1 was completed, and the grounds of claim document drafted, by those solicitors; and that these were supplied by them to her.

But she knew that the grounds of complaint were required by the EAT, and it was incumbent on her to check whether they were included in the electronic document labelled ET1, or whether there was a separate electronic document containing them that she needed also to attach. This would have been straightforward to do. Further, and in any event, it is clear that she did have a copy of the separate grounds of claim document, or at any rate she had immediate access to it. Once the omission was drawn to her attention she swiftly provided a copy to the EAT without any difficulty. It has never been her case that she had some difficulty in obtaining or accessing the document, as such.

The claimant made the point that she had emailed her notice of appeal and attachment initially several days before the deadline. When she was told that the compressed attachment could not be opened, she promptly provided separate attachments. When she was told that the grounds of claim document was missing she promptly provided that too. She had not deliberately failed to provide what was required within the requisite time limit. There would be no reason for her to do that. I accept all of that; but it is well-established by the authorities that guide me, that an error of this sort, and the fact that the error was not intentional, are not sufficient excuse to justify an extension of time.

The claimant refers to the fact that she is a litigant in person. She says that she found preparing the appeal to be overwhelming and refers to the devastating impact which she says that the employment tribunal’s original and reconsideration decisions had upon her mentally. I accept that the tribunal’s initial and reconsideration decisions will have been experienced by her as severe blows. But she was able to take a number of steps in the weeks following those decisions, including complaining about the judge, applying for a reconsideration, corresponding with the REJ, preparing her notice of appeal against the reconsideration, which sets out her grounds of appeal and arguments at some length, taking cognisance of the deadline and required documents, and locating and compiling such attachments as she did send. There is no evidence, medical or otherwise, presented to me, that would support the conclusion that this error was materially affected by mental ill health so severe or prolonged as to impair the claimant’s capability to take the care and the steps required to ensure that her notice of appeal, together with all required documents, was submitted in time.

The claimant says that it was not her fault that the EAT could not open the attachment initially supplied. She also complains that, following her email of 9 February, the EAT did not email her until, as she put it, the last minute, and that, after she responded on 16 February, the EAT took a further day to alert her to the fact that the document was not attached to that email. She has gone so far as to suggest that the EAT administration acted deliberately in order to sabotage her appeal.

However, it was the claimant’s responsibility to ensure that the documents were supplied to the EAT in a form in which they could be accessed within the time limit. In any event, when the difficulty with the original attachment was pointed out to her, she still, through error, failed to provide the grounds of claim document as a separate attachment. As I have noted, it is not the responsibility of the EAT’s administration to point out errors, or to do so within any particular timescale, whether before or after the time limit has expired. I also hope that on reflection the claimant will recognise that there is no basis for her allegation of deliberate conduct to sabotage her appeal.

The claimant says that the respondent has not been put at any practical disadvantage by the short delay. She also contrasts this delay with the length of time it has taken the EAT to progress the matter through its subsequent stages thus far. However, time limits for appealing are important for the particular reasons I have explained; and a litigant who does not take the necessary care to check that they have complied with the requirements to institute an appeal on time must bear the risk that, by the time the problem is identified, it may be too late to correct it. Further, as the authorities make clear, the fact that the delay was in this case short is not a sufficient reason to extend time. The granting of an extension of time would mean that the respondent may be deprived of the certainty and finality of the outcome of the employment tribunal’s decision that the claimant seeks to challenge.

The claimant has also suggested that she would have submitted her appeal sooner, but was misled by REJ Foxwell in January 2021 telling her that the employment judge was reconsidering his judgment, and asking her to wait for it. This, she has written, was sabotage in the hope that she would not submit the appeal in time. However, the only such correspondence in my bundle is the REJ’s letter of 8 January 2021. That was written after EJ Quill’s decision on the reconsideration application had been sent. It does not say that EJ Quill will be further reconsidering his decision. It does not tell the claimant to wait for something more. That letter was also written very shortly after the reconsideration decision was sent, and there was still ample time for the claimant to prepare her notice of appeal against it, assemble all of the required documents, and submit her appeal in time.

It may be that the claimant’s point is that she did not appeal the original substantive decision of the tribunal in time (or at all) because of some earlier communication from the REJ about the reconsideration application. But I am concerned with the proposed appeal against the reconsideration decision. In any event, I have seen no other correspondence to support any such contention; and the employment tribunal’s standard guidance on judgments, and other information readily available, makes clear that the running of time to appeal an original decision is not affected by the making of a reconsideration application. So I cannot see that this argument supports either an acceptable excuse or an exceptional reason to extend time in respect of the appeal against the reconsideration decision.

The claimant says that sight of the grounds of claim document was not necessary to an understanding of the grounds of appeal against the reconsideration decision. However, this was an essential document, the whole of which was missing. It set out at length the whole substance of the claimant’s claims that were adjudicated in the original decision. This was, as I have noted, not a case where just the last page, containing a few non-material lines, was accidentally omitted.

In her skeleton argument for this hearing, and at the hearing itself, the claimant described the understanding that she says she has come to over time, about the alleged treatment during her employment that was the subject of her original complaints. She told me of the profound effects which she says that alleged treatment, and the tribunal’s original decision, have had on her. She says that the issues raised by her account are of wider interest and significance. She has also raised a number of matters about the respondent’s alleged conduct of the litigation, the original employment tribunal hearing, and what she says was the unfairness of the process to her. She has raised issues about material which has appeared on the internet. She has raised wider issues about the UK’s constitutional and democratic processes. She says that her Convention rights have been infringed.

While I appreciate the claimant’s strength of feeling and conviction about all of these matters, this proposed appeal is not against the employment tribunal’s original decision, but against the reconsideration decision. In general, the merits of the underlying grounds of appeal are not relevant to the question of an extension of time, and I note that in this case the contents of the proposed grounds of appeal against the reconsideration decision, mainly relate not to the reconsideration decision itself, but to the tribunal’s original decision and these other more wide-ranging concerns and allegations. The claimant’s arguments, and strength of conviction about these wide-ranging matters and allegations, do not provide any exceptional reasons for extending time in respect of this appeal.

For all of these reasons I conclude that this proposed appeal was not properly instituted in time, the explanation for why not does not provide a sufficient excuse to justify an extension of time, nor is there any other sufficient exceptional reason to extend time. Accordingly, the appeal against the Registrar’s order, and hence the underlying substantive appeal, are both dismissed.