Wilkinson v Reid Wines 1992 Ltd

This is a renewed application for permission to appeal from the Employment Appeal Tribunal, the EAT, permission having been refused on the documents by Wall LJ.

The applicant was the claimant in proceedings before an Employment Tribunal, in which he alleged unfair dismissal by his employer. The Tribunal decided that he had been fairly dismissed, in that the dismissal fell within the range of reasonable responses by an employer in the circumstances. The dismissal followed, and arose out of, an altercation between the applicant, Mr Wilkinson, and a fellow employee, the other van driver employed by the respondents, during which it was found that the applicant had threatened to “deck” the other driver. He (the other driver) then complained to his employer and the employer conducted some disciplinary proceedings.

There has not been any challenge to the fairness of those proceedings; as a result, the applicant was dismissed. The Employment Tribunal, sitting at Bristol, determined, by a decision on 31 August 2006, the reasons for which were sent to the parties on 13 September, that a threat of violence such as this one could properly warrant dismissal. In other words, it fell within the range of reasonable responses by an employer.

Mr Wilkinson sought to appeal against that decision. He had 42 days in which to lodge the relevant documents with the EAT, as from 13 September 2006 (see the EAT rules, Rule 3.3). That, as indeed Mr Wilkinson has acknowledged, compared to the time limits in a number of other jurisdictions, is a generous period of time, as indeed the courts have pointed out. The applicant submitted his notice of appeal to the EAT in time, but failed to lodge the required documentation of his ET1 and ET3 forms. I should say that not only are those required for a valid appeal to be lodged according to the rules and the 2004 Practice Direction, unless a written explanation for their absence is provided instead, but the form of notice of appeal itself informs the would-be-appellant that those documents are required. I draw attention to Section 5 of the form. In the present case the relevant documents were lodged but some two days out of time.

The Registrar of the EAT refused to extend time; there is such a power but it is a discretionary one. The applicant appealed against that decision to HHJ McMullen, sitting as a judge of the EAT. In his judgment, Judge McMullen considered the arguments put forward by the applicant to him, but in the exercise of his discretion refused to extend time.

Mr Wilkinson now seeks permission to challenge that in the Court of Appeal. He says that he had lost the relevant documents, the ET1 and ET3, and in his written material he says that the six-week deadline was getting close and he had to get them by post from the Employment Tribunal Office; that is why they were submitted late. This morning I have asked him when it was that he approached the Employment Tribunal for the relevant documents or copies thereof, and he has told us that he asked them some four days before the 42-day period expired. He has said he had left it until then because he had become depressed after the tribunal hearing; in addition he had to struggle to try to get information which he wanted, in an effort to show that his former employer had lied and had indeed lied on oath.

He has also emphasised to us this morning the dire consequences of the tribunal decision, in that he may have to file for bankruptcy if he cannot appeal because, of course, all of this is now on his record and it has various adverse consequences for him. Mr Wilkinson also comments on the merits of his unfair dismissal claim.

I think at the outset I need to emphasise to Mr Wilkinson that the decision whether or not to extend time is a discretionary one for the EAT. This court will not interfere, therefore, merely because it might have reached a different decision if it had been sitting in the position of the EAT. It has to be shown, before permission to appeal to this court will be granted, that the discretion was improperly exercised in some way, so that the EAT erred in law. That is the test and I must say that I cannot see that Mr Wilkinson even starts to meet that rigorous test. The most striking fact about his explanation for his failure to comply with the rules is that it was only as the six-week deadline was not merely getting close but had almost expired, that he asked the Employment Tribunal for the relevant documents after he had found they were missing.

That, I have to say, is not an acceptable approach. Any would-be appellant to the EAT is expected to act with dispatch and not allow weeks to pass before he gets his act together. It seems to me that the refusal to extend time was well within the EAT’s discretion. Wall LJ said, when refusing permission on paper, that the EAT is entitled to operate the time limits strictly, and that is a well established proposition.

Like Judge McMullen, I have considered the merits of the unfair dismissal claim in case there was some exceptional aspect to it which caused me concern, and which seemed to me to merit granting permission to appeal; I regret to say that I can find no such aspect. The tribunal decision seems to me to have been one properly open to it, on the merits, and certainly is not one obviously wrong in law.

Sympathetic as one may be to Mr Wilkinson’s plight, it would not, in fact, be a kindness to grant him permission this morning to appeal this case because I am quite certain that, if the appeal were pursued, he would end up losing it; and the unhappy consequence then would be that he would face a substantial bill of costs, because costs would then be awarded against him and that would only make his position even worse.

As I have indicated, I can see no realistic prospect of a successful appeal here. That is the test I have to apply and for my part, therefore, I would dismiss this application.

I agree with the sympathy that has been expressed by my Lord in relation to the position in which the applicant finds himself, but I too agree that permission must be refused. The application and the appeal could not possibly succeed.