Harper & Anor v Hopkins

This is an adjourned application for permission to appeal. It originally came before me at an oral hearing on 27 May 2010 when I directed that it should be adjourned to the full court on notice to the respondent, George Hopkins, with the appeal to follow immediately if permission were to be given.

The applicants are John Harper and Julie Watson. They have appeared in person, as they did at the May hearing. Mr Hopkins, who has also acted in person throughout these proceedings, has not appeared or been represented before us this afternoon, although the court's enquiries have satisfied it that he was given notice of today's hearing. I explained in my May judgment, of which a copy was transcribed, that I was not convinced that there was likely to be any substance in the applicant's case but was of the view that the case was a hard one and I had sufficient anxiety about the justice of the outcome of proceedings to date to conclude that it would be fair to give the applicants the opportunity of renewing their application before the full court.

The decision challenged by the applicants is the dismissal on 6 August 2009 by His Honour Judge McMullen QC in the Employment Appeal Tribunal of their appeal against an order of 27 March 2009 made by the Registrar of that tribunal. The Registrar had refused to extend their time for appealing against a judgment of an employment tribunal, the reasons for which were sent to the parties on 21 November 2008. Judge McMullen treated the appeal before him as a hearing de novo of the application for an extension of time, he heard evidence from both applicants, who were cross-examined by Mr Hopkins, and he made certain findings of fact. Having dismissed the appeal, he refused permission to appeal to this court on the basis that an appeal would have no prospect of success; and Mummery LJ refused permission on the papers on 5 March 2010 on the same basis, saying that the grounds of appeal identified no arguable error of law by Judge McMullen. The story is as follows.

Mr Hopkins is the claimant in the tribunal proceedings. On 6 November 2007 he presented a claim against the two applicants in the Leeds employment tribunal, seeking remedies for unlawful deductions from wages, breach of contract, failure to pay accrued holiday pay and unfair dismissal. His ET1 described their address as the Ramshill Hotel, which is in Scarborough, a hotel he said Mr Harper had taken over in June 2007. He claimed to have been employed as a bar/cellarman by the applicants since August 1995, although I understand his case in fact to have been that he had been employed by the hotel since then. He claimed that, without warning, Mr Harper summarily dismissed him on 28 September 2007. This was said to have followed an incident between Mr Hopkins and his partner resulting in his arrest. The default judgment (to which I refer later) records that the claim form had been sent to the applicants on 8 November 2007 and that any response to it had to be entered within 28 days.

On 28 November 2007 Mr Harper wrote to the employment tribunal. He referred to a telephone conversation he had had earlier that day and asked for an extension of time in which to reply to two tribunal claims, one of which was Mr Hopkins’. His reason was that for the previous three weeks he had been ill with bronchitis and flu which had come on top of all his business pressures. He added that his computer had also crashed and he was going through a domestic trauma. The copy letter in our papers bears a “received” stamp of the employment tribunal dated 30 November 2007, but we are told there was no response to it. On 2 January 2008 Mr Harper sent an email to the tribunal again asking for an extension of time, this time saying that he had just been discharged from hospital. He said that all the relevant information would be ready by 4 January 2008.

In fact it was not ready by that date. An ET3 completed by the applicants in person was only signed by them on 7 January 2008 and was received by the tribunal on 11 January 2008. It admitted that Mr Hopkins had been an employee and had been dismissed and it asserted that his employment had commenced on 11 July 2007. If that last assertion was right, his term of service would have been too short to enable him to make an unfair dismissal claim. It claimed he had been summarily dismissed for gross misconduct in the nature of an assault on his wife, who was also a hotel employee. One inference from the ET3 is that the employer, and proper respondent to the claim, was Traditional Hospitality Inns Limited, a company which traded as Ramshill Hotel, had taken the hotel over on 5 July 2007 and of which the applicants were directors. The ET3 did not however flag up expressly that Mr Hopkins had directed his claim against the wrong respondent, although the applicants have since produced his P45 showing Ramshill Hotel as his employer. Their ET3 accepted that his employment had terminated on 28 September 2007 and accepted that he had been at the hotel for some 12 years. The applicants are now no longer running the hotel, having been forced out of it by the landlords on about 17 January 2009. They appear to have understood that their ET3 was late and apologised for that on its last page, giving various reasons for the delay.

On 16 January 2008 the tribunal wrote to the parties, informing them that the applicants' ET3 had been received out of time and that Employment Judge Hepworth had decided that it could not be accepted. The letter enclosed the default judgment that on 15 January 2008 the judge had entered under rule 8 of the Employment Tribunal Rules of Procedure, which are in Schedule 1 to the Employment Tribunals (Constitution and Rules  of Procedure) Regulations  2004 (“the Employment Tribunals Rules”). The judgment recorded that Mr Hopkins' claims succeeded and adjourned for determination by an employment judge at a hearing the remedy to which he was entitled.

The applicants applied for a review of the default judgment, one directed at achieving permission to file their ET3 out of time, although we do not have a copy of their application. A hearing -- which I assume was to be both on that application and, if it failed, on the matter of remedy -- was fixed for 17 June 2008, but that was destined to clash with a hearing relating to Ms Watson's divorce and so, upon the applicants' request by an email of 11 June, it was adjourned by an order describing the respondent to Mr Hopkins' claim as "the Ramshill Hotel", which was inconsistent with the ET1. The hearing was re-fixed for 26 June. That hearing was, however, also postponed and a further hearing was fixed for 21 July. By an order of 18 July in which the applicants rather than the Ramshill Hotel were now named as the respondents, a new hearing date was fixed for 27 August. That hearing was also postponed, the new hearing date being fixed for 30 September.

The applicants claimed that they were then presented with difficulties in attending that hearing. Ms Watson was unfortunately assaulted at the hotel on 28 September and suffered injury. As a result, shortly before noon on 29 September, Mr Harper sent an email to the tribunal asking for an adjournment of the hearing fixed for the following day. We do not have a copy of the email he sent and so do not know how he put his case for an adjournment. We do know that he attached a report from the Ambulance Service recording that Ms Watson had sustained abrasions to her elbow and contusions to the back of her head and had been advised to attend hospital but had refused, although apparently she did attend hospital the following day. We do not know whether any reason was advanced as to why Mr Harper could not attend the hearing.

At 4.41 pm on 29 September, Michael Morgan, the deputy listing manager of the tribunal, sent an email in response to Mr Harper informing the applicants that an adjournment had been refused by Employment Judge Burton, who had noted that the hearing:

Mr Morgan directed the applicants that they should therefore attend the hearing on 30 September. The applicants make the point that the employment judge was wrong in suggesting that they had made more than one previous postponement application. Mr Harper, at 10.38 am on 30 September, emailed Mr Morgan in reply, saying that the applicants had just received his email and that Ms Watson was in bed and was unable to move or to attend the hearing. He did not say why he could not attend it. As I recorded in paragraph 7 of my judgment of 27 May 2010, Mr Harper candidly admitted to me at the earlier hearing that there was in fact no sound reason why he could not have attended it, although I then understood his position to be that he had not then been in the right frame of mind to deal with the case in the tribunal. Mr Harper has not resiled from that position today.

On 3 October Mr Harper sent a further email to the tribunal asking as to the outcome of the hearing on 30 September, "which we were unable to attend as a result of Ms Watson being assaulted over the weekend". He complains that he received no reply to that email. We know, however, that the hearing on 30 September proceeded in Mr Hopkins' presence but the applicants' absence. The case was heard by a tribunal of three, Employment Judge Whittaker, Mr D Wallis and Mr R P Jackson. Our papers include what appears to be just the first page of the tribunal's judgment given on 30 September at the end of that hearing which (i) ordered the title of the default judgment to be changed to show the respondents as "John Harper and Julie Rae Watson t/a the Ramshill Hotel"; (ii) refused the applicants' application for a review of the default judgment; and (iii) awarded Mr Hopkins £8,901 compensation for unfair dismissal. It may be that there was also a further award of something over £800 for some other head of claim. The judgment of 30 September was signed and sent to the parties on 13 October 2008. That was recited in the later tribunal judgment sent to the parties on 21 November 2008, to which I shall come. We also have a notice from the tribunal under the Employment Tribunals (Interest) Order 1990, confirming that the relevant judgment date was 13 October 2008.

The applicants assert that they never received the judgment of 30 September that was sent to them on 13 October. What is clear, however, is that sometime in October they retained Peninsula Business Services Limited to act for them. On 22 October Maria Farnell of Peninsula wrote to the regional secretary of Employment Tribunals to inform him/her that Peninsula had been appointed representatives of "Ramhill Hotel" (sic) in Mr Hopkins’ claim. She gave the tribunal a case number and asked for all future correspondence to be addressed to Peninsula on Ramshill's behalf. On 24 October John Granger of Peninsula wrote to the regional secretary on the applicants' behalf, requesting a review of the judgment of 30 September. The inference is, therefore, that Peninsula had a copy of the judgment, since how otherwise would they have known that a judgment had been given on 30 September? We have also been shown a copy of the judgment that was apparently faxed to Peninsula a day or so before Mr Granger's letter, but it does not follow from that that the judgment had not, as it proclaims on its face, also been sent to the parties, including the applicants, on 13 October.

Mr Granger's letter explained why Ms Watson had been unable to attend the hearing on 30 September. It also said that Mr Harper had witnessed the assault, an event that had so affected him as to render him unfit to give evidence because of his concern for Ms Watson's welfare. It pointed out that this had been explained to the tribunal on 29 September, which had nevertheless ruled that the hearing should go ahead on the following day. Peninsula submitted that the judgment of 30 September should be revoked, as should the original tribunal judgment refusing to admit the applicants' late ET3.

On 21 November Peninsula, by Bertrand Stern-Gillet, wrote again to the regional secretary, reminding him that Peninsula had written on 24 October requesting a review of the judgment of 30 September. He said it had received no reply and asked for one. Peninsula wrote to Mr Harper on the same day to inform him that it had sent a reminder.

By coincidence, also on 21 November, the judgment of Employment Judge Whittaker refusing the review application, together with written reasons, was sent to the parties, meaning in the applicants' case that it was sent to Peninsula, their representatives. Peninsula had, however, not apparently received it before sending an email to Mr Harper on 25 November in reply to one from him saying that they would inform him of the tribunal's decision when they received it. The court does not know precisely when Peninsula did receive it. If the applicants have made an inquiry as to that and discovered the answer, they have provided no evidence explaining it. What we do know is that Peninsula had certainly received it by 15 December, when they posted it to Mr Harper and also wrote him a separate letter of the same day, saying that they had "now received" the tribunal's decision although without saying precisely when they had done so. Judge McMullen found that the applicants received the judgment and reasons on 20 December when Peninsula's letter of 15 December arrived.

The tribunal's ground for refusing the review application was that a review had no reasonable prospects of success. The written reasons explained that the tribunal had on 30 September considered and rejected the applicants' reasons for not attending that hearing and they had refused the adjournment application. They said, rightly it seems to me, that Mr Harper had not shown any valid reason why he could not be present on 30 September. They said that Peninsula had made representations on 24 October, but that the matters they had raised had been considered at the hearing on 30 September. They said that the hearing of Mr Hopkins’ claim had previously been postponed more than once prior to 30 September at the applicants' request. As to the last point, as I have already said, the applicants' response is that they were only responsible for one postponement, an assertion which I have no reason to question.

The time within which it was open to the applicants to appeal to the appeal tribunal against the refusal was a 42-day period running from the date when the reasons were "sent to the parties": see rule 3(3) of the Employment Appeal Tribunal Rules 1993, as amended. That means the date on which the reasons were sent, rather than received: see Sian v Abbey  National plc [2004] IRLR 185, a decision of the Employment Appeal Tribunal in line with the understanding of the operation of the rule accepted by the Court of Appeal in Aziz v Bethnal Green City Challenge Co. Limited [2000] IRLR 111. In Aziz the reasons were sent on 24 March 1998, although they were only received later, but the court held that the time for appealing expired on 5 May, being 42 days calculated from 24 March. In this case the employment tribunal sent the reasons to Peninsula rather than to the applicants direct, but for the purposes of the applicable rules that is the equivalent of sending them to the parties: see the two closing lines of rule 61(4)(h) of the Employment Tribunals Rules. The rules therefore treated the reasons as sent to the applicants on 21 November 2008.

The result of that is that the time for appealing against the refusal of the review application ran from 21 November 2008 and expired on 2 January 2009. The applicants' notice of appeal to the appeal tribunal was filed on 10 February 2009, 39 days late. Even then, it did not comply with the appeal tribunal's rules for the valid institution of an appeal since it did not include various documents that are required to accompany a notice of appeal, the omission of which means that the notice is not validly filed. I infer that the missing documents were then provided. The Registrar of the appeal tribunal considered that by then the notice was 47 days late. She refused an extension of time, referring to well known authorities in this area to the effect that it is only in exceptional cases that the generous 42-day period will be relaxed.

Judge McMullen, on the appeal against the Registrar's decision, heard evidence from both applicants and made findings of fact in his judgment. He found that Mr Harper knew of the 42-day time limit for appealing, but assumed that it ran from 20 December 2008 when he received the judgment and reasons. He found that Mr Harper made a deliberate decision at that time to defer filing his notice until early in 2009 because the days in between were busy holiday days at the hotel for everyone there, including the applicants. He explained that Mr Harper had plainly not considered the clear terms of the judgment booklet, which accompanies every tribunal decision (and which Mr Harper confirmed to me at the hearing in May 2010 that he had received) and which explains the date from which the time for appealing runs. He explained that unfortunately Mr Harper was taken seriously ill on 29 December 2008 and was in hospital from then until 7 January 2009. When he was discharged, he was still ill from his ordeal and so did not submit a notice of appeal until 10 February. The judge said that Mr Harper had produced no medical evidence as to his illness but that he accepted his own evidence. As for Ms Watson, the judge found that she was also ill during January 2009. He had seen a letter from her doctor, Dr Newman, indicating that there had been a period of protracted illness, although the evidence did not prove when it began. The judge found, however, that there was no indication that she had been ill before January 2009. In that context, he was plainly considering whether she had been ill during the 42-day period for filing the notice of appeal. He also found that the evidence as to Ms Watson's illness in January 2009 did not prove that she could not have appealed.

In giving his reasons for dismissing the appeal, Judge McMullen said that the notice of appeal was plainly out of time. The question was whether the discretion to extend time should be exercised, which was a very wide discretion. He referred to and rejected the test said to be found in the appeal tribunal’s judgment in Woodward v  Abbey  National  Plc  [2005] UKEAT PA/0534/05/SM to the effect that time will only be extended when the applicant can show that it was impossible or impracticable to put in his notice of appeal in time, and he held that the Registrar had been wrong to follow that guidance in arriving at her decision. Judge McMullen also referred, without citation, to other familiar authorities on this topic, in particular United Arab Emirates v Abdelghafar [1995] IRLR 243, a judgment of the appeal tribunal delivered by the then President, Mummery J (as he then was), and Aziz  in the Court of Appeal and said it was plain from those authorities that:

The approach that Judge McMullen applied to the issue before him was one that required, he said, "an analytical approach [to] be taken to the whole of the period of six weeks and I do that in this case". He explained his conclusion as follows:

We have received pages and pages of manuscript submissions from the applicants as to the serious injustice that they assert is being visited upon them and as to the fact that they have never had a trial. As regards this last complaint, whilst it is correct, I have to say that I have relatively little sympathy for the applicants in this respect. They of course have had the misfortune of having, I presume of necessity, to act for themselves in respect to Mr Hopkins' claim, and I do not underestimate the burden and difficulty which that may have presented to them. Parties to tribunal proceedings who, by choice or necessity, act for themselves are, however, as much bound by the applicable rules of procedure as those who have the good fortune to be represented by lawyers, and they are not entitled to expect them to be adjusted to suit their own convenience. Thus their first obligation was to serve an ET3 within the time prescribed by the rules, of which time limit they were aware because they sought an extension of it on 28 November 2007. They complain that their application for an extension was ignored. I shall assume that it was. I do not, however, understand how, when they received no response to it, they considered that they were entitled to award themselves an extension of time of something of over a month. They were thereby acting in defiance of the rules and, whilst they may regard it as harsh, the immediate consequence to which that led was the direct result of their own imprudence in refusing to respect the rules.

They then had the opportunity to advance an argument to the tribunal on 30 September with a view to putting everything right. The points they would then have wished to make were simple. First, that they, the applicants, were not Mr Hopkins' employer: his employer was Ramshill Hotel. Second, it had only employed him for a few weeks, which was insufficient to entitle him to an unfair dismissal claim. Third, if he was entitled to bring an unfair dismissal claim, his summary dismissal was anyway fully justified on the grounds of gross misconduct. Fourth, the tribunal should in its discretion set aside the default judgment, which, if these arguments were right, was an injustice that should be put right. Whilst, in the circumstances I have explained, it may well be that Ms Watson was not fit to attend the hearing on 30 September, there is no doubt that Mr Harper could have attended it. His arrogant refusal to do so in the face of an express direction from the tribunal to the contrary was the highest folly. He should obviously have attended the hearing and explained the position to the tribunal, when he could also have explained why Ms Watson was physically incapable of being there herself. The only reason that the parties had no hearing on 30 September was because of Mr Harper's inexplicable decision to refuse to attend it. With respect to the applicants, they have no grounds for accusing the system of depriving them of justice. They have simply failed to do the obvious things they ought to have done in order to avail themselves of the justice that was as available to them as to all other litigants.

These considerations go to the merits of the applicants' bid by their belated Notice of Appeal to challenge the tribunal's subsequent refusal to review the making by then of their order of 30 September 2008, although one point that may tell in the applicants' favour on the merits is that the tribunal may have been wrongfully influenced in its decision by the consideration that the applicants had previously sought more than one adjournment of the hearing, although that was not a point that Peninsula made in its letter of 24 October 2008.

Judge McMullen did not, however, dismiss the applicants' appeal on the grounds that any appeal would have no merit, but on the grounds that the principles applicable to the granting of an extension of time did not justify the exercise of his judicial discretion in favour of an extension on the facts of the case. In approaching his decision Judge McMullen rejected the suggestion that an applicant for an extension of time has to show that it had been either impossible or impracticable to file the notice of appeal within the permitted 42 days, and I would respectfully agree with him in that respect. The guiding principles are, I consider, to be found in the Abdelghafar decision, to which I made a full reference in paragraphs [4] to [7] of my judgment in Jurkowska v Hlmad Limited[2008] EWCA Civ 231, explaining in paragraph 7 that the guidance given in Abdelghafar had later been approved by this court in Aziz. I do not propose to repeat that reference here.

That guidance explains that the 42-day time limit is required to be observed by the parties. More sympathy may be shown to unrepresented parties, but even with them there is no excuse for ignorance of the time limit or the importance of compliance. The parties are informed of the 42-day time limit for appealing when the reasons are sent to them, and I have explained that the applicants did receive the booklet that explains the position with regard to appealing, which Judge McMulllen found they had not read with sufficient care. The discretion to extend time will not be exercised without a full and honest explanation for the non-compliance and, if that explanation shows that there is a good excuse for it, then an extension may be granted. Ignorance of the time limit is not, however, a good excuse and the appeal tribunal may refuse an extension even when the time limit is very short. In the Hlmad case the overrun was a mere 33 minutes, and whilst, on the particular facts of that case, an extension was granted by the appeal tribunal, Sir Henry Brooke considered the point raised by the decision to be sufficiently important to justify an appeal to this court, which in the event upheld the extension.

In the present case Judge McMullen looked at the whole 42-day period, considering first the period from 21 November to 20 December, during which the inference was that Peninsula alone was aware of the refusal of the review application. Peninsula was the applicants' agent and they are fixed with its acts and omissions, and Judge McMullen's view was that it was no sufficient excuse for the applicants to complain that Peninsula had sat on the judgment without telling them. The applicants may well regard that as a somewhat harsh conclusion but it appears to me to be a logically sound one. If, for example, the applicants had instructed Peninsula on, say, 1 December to file a notice of appeal at the appeal tribunal and Peninsula had failed for no good reason to file it in time when they could easily have done so, I cannot see that Peninsula's omission would provide any ground for granting the applicants an extension of time for appealing under the Abdelghafar guidance. Similarly, if Peninsula had been sitting on the judgment for some time, as to which there is no evidence, without telling the applicants and raising with them the possibility of an appeal, that might be a ground for criticism of Peninsula. But, for like reasons as in the first example, I would not regard it as providing a good excuse for an extension of time.

As for the second period from 20 December onwards, Judge McMullen found on the facts that Mr Harper made a wrong decision to defer filing a notice of appeal until the New Year. Whilst Judge McMullen did not explain this further, Mr Harper's decision was based on his erroneous assessment that the 42-day period ran from 20 December, an assessment resulting from his careless omission properly to consider the advice in the booklet. In their original representations to this court, the applicants maintained that they were correct that the time only ran from 20 December, although at the hearing before me in May they accepted that they had been mistaken about that, and they still recognise that. Even if that had been the applicable start date, the time for appealing would have expired on 31 January 2009 and so the applicants were still ten days late, although they claim they should be excused this because both of them were ill in January and early February.

Judge McMullen recognised that Mr Harper became ill on 29 December, when he was admitted to hospital until 7 January 2009. He explained, however, that it was not this that was the cause of the applicants' failure to file the notice by 2 January 2009, which they had no intention of doing. Even had he not been so incapacitated, Mr Harper would still have been filling the form in after 2 January, when the deadline expired. As for Ms Watson, whilst there was medical evidence that she became ill after the 2 January deadline, there was no reason why she could not have filed the notice earlier.

I should say that we have been provided with a certain amount of further material directed at the applicants' states of health at the material time, which I would regard as the period from 21 November 2008 to 10 February 2009. Thus Dr Newman describes Ms Watson as having suffered stress, anxiety and depressive symptoms following the assault on 28 September 2008. She was also admitted to hospital on 20 January 2009, although she was discharged on the same day, when suffering from chest pain as a result of a chest infection. We are also told that Mr Harper attended the A&E department at Scarborough hospital on 22 December 2008. The problem, however, with regard to the applicants' bid to ask us to factor this further material into our considerations, is that all of it could have been put before the Registrar and Judge McMullen in the appeal tribunal, whereas none of it was. Judge McMullen made his findings of fact on the basis of the evidence that the applicants put before him, and there is in my judgment no reason at all why, before this court, they should be entitled to present a different factual case. Nor in my view does the further material they have put before the court anyway make any material difference to their position.

So far as the present application is concerned, the only question is, it seems to me, whether, in exercising his discretion in the way he did, HHJ McMullen misdirected himself in any way. I have come to the conclusion that he did not. Reduced to its essentials, this is a case in which the time limit was overlooked because the applicants mistakenly considered that they had 42 days from 20 December in which to appeal rather than 42 days from 21 November. Even on their own calculations, their notice was late, just as their ET3 had been, and as was their appellants' notice to this court, which was filed on 12 October 2009 and so some six weeks late.

I have to say I have, therefore, the gravest of doubts as to whether, even if they had appreciated on 20 December that the deadline was Friday 2 January 2009, they would have met it, having regard also to the fact that this was a holiday period. If they had on 20 December resolved to draft the notice on, say, 1 January and to file it at the appeal tribunal by hand on 2 January but had then been thwarted in their plans by Mr Harper's hospitalisation, it is quite possible that the tribunal might have been sympathetic to an extension of time if the notice had thereafter been lodged as soon as one or other of them was fit to draft it. But nothing like that happened. What did happen was that the notice was out of time because the applicants, by their own admitted mistake, never intended to serve it in time and made no attempt to do so.

In my judgment Judge McMullen, for the reasons he gave, was entitled to come to the conclusion that he did, and I consider that he made no error of approach. I have considerable sympathy for the applicants, but I have come to the conclusion that I would refuse either to extend their time for appealing to this court or to permit them to appeal.

I agree, and would only express my sympathy also with the applicants, who have had more than their fair share of misfortunes over the last few years, but that is not sufficient to lead to the advancing of an appeal where in my view they have not got an arguable case.

I agree with both judgments and the application for permission to appeal accordingly is refused.