De Souza v Manpower UK Ltd

LORD JUSTICE MAURICE KAY: This is an application for an extension of time and for permission to appeal. The application was considered originally on the papers by Sir Richard Buxton, who trenchantly refused permission on 1 May 2013.

The application was renewed and it first came before Rimer LJ on 10 September 2013. There was one aspect of the decision of the Employment Tribunal which troubled Rimer LJ, but he did not grant or refuse permission. He adjourned it to a later date -- in the event today -- so that the application could be considered as one for an extension of time and permission to appeal, with appeal to follow if permission were to be granted. Looking at the transcript of his judgment the main reason why he did that is because he was concerned about what he described as the "apparently inexcusable delay in filing the appellant's notice."

The background to the case is that the applicant was employed by the respondent until her dismissal in May 2009. The effective date of termination was 21 May 2009. The reason was said to be redundancy.

The applicant commenced proceedings in the Employment Tribunal under a number of headings. That led to a case management discussion on 15 June 2010 which refers to the claims under the headings "whistleblowing", "race discrimination", "harassment and/or victimisation", "unfair dismissal", and "breach of contract".

The application was issued one day out of time. For it to be allowed to proceed, the Employment Tribunal would have to be satisfied in relation to the race discrimination case that it is just and equitable to extend time. I confine what I say to the race discrimination case because the other heads for which different statutory provisions apply were not pursued to the Employment Appeal Tribunal. The EAT and we are concerned only with the race discrimination case.

The Employment Tribunal, in the form of Employment Judge Haines, refused to extend time. It heard evidence from the applicant. It is apparent that it found her an unconvincing witness. The relevant paragraph in the decision as far as race discrimination is concerned is paragraph 11, which reads:

The appeal to the Employment Appeal Tribunal came before a panel presided over by His Honour Judge Peter Clarke on 12 December 2012. Suffice it to say that the EAT did not find any material legal error in the decision of the Employment Tribunal.

The jurisdiction there, as here, is limited to errors of law. The EAT was a little bemused by the way in which the Employment Tribunal had treated the question of prejudice in paragraph 11 but plainly concluded that it was not a passage which contained a legal error of any materiality.

Thereafter the applicant filed an appellant's notice in this court. Time had begun to run on 12 December 2012 when she was present in the EAT and its judgment was given. She had 21 days within which to file her appellant's notice. In fact she took twice as long as that and so she now needs to apply for an extension of time in this court.

I have listened to everything that has been said as far as that delay is concerned. It is a substantial delay in the context of a 21 day time limit. The reasons or excuses advanced for that delay relate substantially to a claim that the applicant needed a transcript of the judgment of the EAT before filing appellant's notice; it is not disputed that time was running from 12 December 2012.

In this context it is as well to keep in mind the order of the EAT, which included this direction:

When the EAT wrote to the applicant on 14 December 2012 it said:

It is obvious from those two documents that the applicant knew or should have known that the 21 day time limit was running from 13 December but that she would not receive a copy of the transcript for some 6 weeks.

It is submitted on her behalf that as a litigant in person she ought to be indulged because it was difficult for her to formulate grounds of appeal without seeing the approved judgment and this court should take a kindly view of someone who preferred to wait and put in a definitive appeal rather than file an in time appeal with the risk that it might need to be amended when the transcript became available, as to which reliance would have to be placed on the discretion of the court.

For my part I find that submission to be wholly unpersuasive. Time was running. Knowledge of the need for urgency had been communicated. It seems to me there was no reason whatsoever why a timely notice of appeal should not have been issued. The excuse about throwing oneself on the mercy of the court is unconvincing because by taking the course that was taken that is precisely what the applicant is doing today.

For these reasons I would refuse an extension of time but I do not leave the matter there. There is the question of the merits of the proposed appeal. Had they been demonstrably strong a more relaxed view may have been taken. In my judgment, however, they are demonstrably weak.

Like the EAT, I am a little bemused by the language in one sentence of paragraph 11 of the ET's judgment, namely the statement that "there is no prejudice to the claimant if we refuse to extend time." Of course there was prejudice in that by refusing an extension of time the ET was stopping the applicant in her tracks.

But that is not the end of the matter. One has to look at that curious sentence in context. It is true that the application was out of time by only one day but it is also true, as is well established on the authorities, that time limits in the ET and the EAT are strictly monitored and exceptions to them have to be justified; see, for example, Robertson v Bexley [2003] IRLR 434. I am in no doubt whatsoever that the tribunal had it well in mind that the overrun was only one day; indeed it said so.

What the tribunal was then anxious to do was to ascertain the reason for the delay. I have spelt out its findings. The reason was that having considered the circumstances and made partly unfavourable findings about the applicant's evidence the tribunal concluded that the lateness was entirely down to her. It gave a number of reasons. She had had legal advice from an early stage, indeed since before the dismissal took effect. She had seen her solicitor in the month following the effective date of termination and her claim had been substantially prepared. Really all that needed to be done was for it to be filed. However she delayed, she said, because of financial difficulties. The ET, permissibly, was sceptical about all of that but seems to have considered, again permissibly, that in any event the distractions to which she referred, be they financial or to do with her family or housing circumstances, were not sufficient to provide a good reason to justify an extension of time. All that seems to me to be unassailably correct.

The Employment Tribunal chose to refer to Keeble v British Coal Corporation. It was under no obligation to do so; its obligation was to consider what was just and equitable in all of the circumstances, as it said.

In my judgment the single peculiar sentence in the Employment Tribunal's judgment cannot deflect one from the overall reality, which is that there was a proper consideration of all of the circumstances in order to see whether time should be extended.

Essentially two points are advanced on behalf of the applicant as to why we should grant permission in order to sustain an arguable appeal. The first, floated under the banner of "perversity", latches on to the point about Keeble and prejudice. I have already dealt with that. It seems to me that although that that was an error of expression it was an immaterial error of law.

The second point is that the Employment Tribunal failed to appreciate that this was a case of a continuing history of discrimination going up to and beyond the date of dismissal. Although this point is put forcefully here it seems to me that it is an utterly unarguable point. If one looks at the particulars attached to the ET1 they come under separate headings. We are concerned only with those under the heading of "race discrimination". Paragraphs 20 to 26 of those particulars make no reference to any discriminatory act subsequent to the dismissal. When the issues were refined at the case management conference, once again they were defined in a way which made clear that in relation to the claim for race discrimination the issues were historic rather than continuing ones in the sense that they preceded the date of dismissal. It was not the applicant's case below that this was a serious case of continuing discrimination. The only point in relation to that was one to do with the continuation of the grievance procedure which was properly dealt with by the Employment Appeal Tribunal.

I note that in the decision of the Employment Tribunal it is recorded in paragraph 2 that it was common ground that the claim was presented one day out of time. The next sentence reads:

There is before us a last ditch attempt to circumvent that finding but it seems to me that it was a proper finding on the material then before the Employment Tribunal. The Employment Tribunal fell into no error in relation to it, nor did the Employment Appeal Tribunal.

For all of these reasons I would not only refuse to extend time I would make it clear that this is a case which simply does not merit permission to appeal in any event.

LORD JUSTICE DAVIS: I agree.

SIR STANLEY BURNTON: I also agree.