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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Driver v. Preston Borough Council & Anor [2002] UKEAT 1090_01_1106 (11 June 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1090_01_1106.html Cite as: [2002] UKEAT 1090_01_1106, [2002] UKEAT 1090_1_1106

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JUDGE CLARK: 1. This is an appeal by Mr Driver against the refusal by the Registrar to extend time for his Notice of Appeal against a decision of the Liverpool Employment Tribunal, promulgated with extended reasons on 25 June 2001, directing, on the hearing of a preliminary issue, that he should remain a second Respondent to these proceedings brought in that Tribunal by Mrs Harrison against Preston Borough Council (the Council) as first Respondent and Mr Driver. The background 2. By an Originating Application presented to the Tribunal on 12 October 2000 Mrs Harrison, employed by the Council as Assistant Director (Legal and Administration), complained of victimisation contrary to section 4 of the Sex Discrimination Act 1975 on the part of both the council and Mr Driver, an elected Councillor. The claim is resisted by both Respondents. 3. On 19 October 2000 Mr Driver wrote to the Tribunal, contending that he was not a proper party. Correspondence ensued; he was not dismissed from the proceedings. He appealed to the EAT (EAT229/01). On 10 April 2001 a division presided over by Lindsay P dismissed that appeal. 4. On 15 June 2001, at the hearing of the preliminary issue as to whether Mr Driver was a proper Respondent to the application a Tribunal chaired by Mr D Reed directed that he remain a party to the proceedings. That decision was promulgated with extended reasons on 25 June, as I have earlier said. 5. It seems that a further Tribunal hearing was convened for 2 July. That hearing concluded on 5 July, but without the Tribunal then reaching a decision. In due course Mr Driver discovered that the Tribunal would not be meeting in private to discuss the matter until 26 October. In these circumstances he lodged a notice of appeal against the Reed Tribunal decision by letter dated 15 August 2001. That appeal was, as he acknowledged, out of time. He sought an extension of time. 6. Having considered the parties' written representation the Registrar refused to extend time by an order dated 4 December 2001. She did not find that the Appellant had provided a good excuse for his delay in appealing. I should add that there is now in train an extant appeal against the second Tribunal's decision, apparently promulgated in December 2001, dealing also with Mr Driver's standing as a Respondent. 7. Today there is no appearance by or on behalf of the Appellant, but I have received detailed written representations from solicitors acting on his behalf, Berg & Co. Having considered those representations, and the accompanying bundle of documents, together with the EAT indexed bundle, my conclusions are as follows. 8. The relevant principles applicable to the ground or refusal of an extension of time for appealing to the EAT are, as a matter of domestic authority, to be found in the judgment of Mummery P in United Arab Emirates v. Abdelghafar (1995) ICR 65, as approved by the Court of Appeal in Aziz v. Bethnal Green City Challenge Company Limited (2000) IRLR111. Applying those principles I have no doubt that the Registrar correctly exercised her discretion in refusing to extend time on the facts of this case. Waiting for a subsequent Employment Tribunal decision is not a good excuse for delaying the lodging of a Notice of Appeal against the first decision. 9. However, it is submitted in this case that the guidance in Abdelghafar (no mention is made by the Appellant's solicitors of Aziz) should be read subject to (a) the Civil Procedure Rules 1998 (CPR) and (b) the Human Rights Act 1998. I shall take each of those submissions in turn. 10. First, the CPR. My attention is drawn to part 3.9, read with the Courts Management Powers under part 3.1 (1). Part 3.9 sets out a check list of factors to be considered by the Court in determining whether, in all the circumstances, time should or should not be extended. One of those factors is whether there is a good explanation for a party's failure to comply with any rule, which is reflected in the Abdelghafar principles. 11. I return to the Court of Appeal judgment in Aziz. In that case is was argued that the Abdelghafar approach ought not to be followed because it was stricter than that adopted by the Court of Appeal when considering appeals brought out of time. Whilst the court accepted that the Abdelghafar approach was stricter than that of the Court of Appeal, it was held that such an approach was acceptable, bearing in mind that the EAT was a statutory body with power to regulate its own procedure. 12. Is the EAT procedure strictly subject to the CPR? In my judgment it is not. I find it significant that whereas the principles underlying the CPR are to some extent incorporated into the Employment Tribunal Rules and Procedures 2001, see particularly rule 10, no such incorporation is to be found in the Employment Appeal Tribunal (Amendment) Rules 2001 (S.I 2001/1128). 13. In these circumstances I am not persuaded that the advent of the CPR, even if those Rules would allow of any different result, which I doubt, in any way alters the approach laid down in Abdelghafar and Aziz. 14. Secondly, the Human Rights Act. Reliance is placed on Article 6 of the Convention, the right to a fair trail and the right of access to a court. It is submitted, without reference to any European Court of Human Rights authority, that in some way (a) the first instance Tribunal failed to expeditiously provide reasons for their decision forming the subject of this appeal and (b) strict application of the time limits, subject only to extension in rare and exceptional cases, breached the Appellant's Article 6 rights. 15. I reject both those propositions. The decision presently under appeal was delivered orally at the hearing held before Mr Reed's Tribunal on 15 June and promulgated with extended reasons on 25 June 2001. There was no delay. The delay between 5 July and December 2001 on the part of the second Tribunal in promulgating its decision is immaterial to the present appeal. Further, I am not persuaded that a strict application of the time limit for appealing offends article 6. I refer, by analogy, to the unsuccessful challenge in the European Court to the qualifying period for unfair dismissal claims brought in Stedman v. UK (1997) 23 EHRR CD 168. 16. For these reasons I shall dismiss this appeal.