England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London Wednesday 8 May 2002

Wednesday 8 May 2002

1. LORD JUSTICE MUMMERY: This application for permission to appeal is made by Mrs Amirthanayagam. She wishes to appeal against the order made by Lindsay J as President of the Employment Appeal Tribunal on 2 November 2001. He dismissed the applicant's appeal against the refusal of the Registrar of the Appeal Tribunal on 24 January 2001 to grant to the applicant an extension of time in which to appeal. The applicant wished to appeal against the decision of the Employment Tribunal, contained in extended reasons sent to the parties on 14 February 1997, dismissing the applicant's claim against the Insolvency Service for unfair dismissal.
2. The background to the case needs to be briefly stated. From 1 October 1987 until 30 May 1995 the applicant was employed as an Insolvency Examiner with the Insolvency Service, serving from 1993 onwards in Nottingham. In March 1994 there was a review of her case load commenteding adversely on the quality of her work and advising the need for close monitoring. Between February and 30 May 1995, when she was dismissed, the applicant was away on sick leave suffering from anxiety. She started proceedings in the Employment Tribunal on 9 August 1995, claiming unfair dismissal. The application form gave details as to why the dismissal was alleged to be unfair. It was complained that no oral or written warnings about conduct had been given; at no time had the applicant wilfully breached official instructions; the Insolvency Service had confused disciplinary procedures with limited efficiency procedures; by their methods of obtaining information they had breached their own procedures; the applicant was subjected to continual criticism, and sometimes bullying, by line management affecting her performance of duties; and the DTI guide suggests a number of penalties where disciplinary charges are proven, but there was no evidence to suggest that anything other than dismissal was considered.
3. The Industrial Tribunal (as it was then called), heard the case on 8-10 January 1997 and unanimously decided that the applicant was not unfairly dismissed. The extended reasons were sent to the parties on 14 February 1997. Before they had been received, the applicant had made an application to the Industrial Tribunal for a review of the decision, which had been notified with summary reasons. On 12 February 1997 the chairman refused the application on the ground that it had no reasonable prospect of success.
4. About a month after the extended reasons had been sent to the applicant, a tragic event occurred in her personal life when, on returning from an errand on 13 March 1997, she found that her husband had died from a sudden heart attack. Notice of appeal to the Employment Appeal Tribunal was not received until 21 November 2000. That is 1,334 days out of time. It was therefore necessary for the applicant to apply for an extension of time and that, as I have already mentioned, was refused by the Registrar on 24 January 2001 and was the subject of an unsuccessful appeal from which permission is now sought to appeal.
5. Before I turn to the arguments that the applicant has presented in person this morning and in a skeleton argument, I should refer to the rules which this court must apply on considering a permission application. According to Part 52.3 of the Civil Procedure Rules, permission to appeal will only be given where (a) the court considers that the appeal would have a real prospect of success or (b) there is some other compelling reason why the appeal should be heard. I also have to bear in mind that this is an appeal against the exercise of a discretion which the Employment Appeal Tribunal may exercise to extend the 42-day period, which the Rules provide for the service and filing of a notice of appeal. In considering the exercise of a discretion, this court has limited powers to interfere. It will in general only interfere with the discretion of the lower court where it is shown that there has been some error in the principles of law applied or where relevant factors have not been taken into account or irrelevant factors have been taken into account.
6. In this case it is also necessary to bear in mind the guidelines laid down in the Employment Appeal Tribunal for considering requests for extensions of time. As stated in United Arab Emirates v Abdelghafar [1995] ICR 65, the following questions need to be considered on any application for an extension: (a) what is the explanation for the failure to appeal in time; (b) does that explanation provide a good excuse for the default; and (c) are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time?
7. The main ground on which an extension of time was sought in this case was that, following her husband's tragic death, the health of the applicant rapidly deteriorated to such an extent that she became clinically depressed and had to receive extensive treatment. As a result she was unable to apply her mind to the appeal.
8. In his judgment Lindsay J held that after so huge a lapse of time between the sending of the extended reasons and the notice of appeal, a really compelling explanation was required. The judge considered that there was no inability on the applicant's part to prepare and file a notice of appeal in the interval between 14 February 1997 and 12 March 1997, given that she had expressed an intention to appeal as early as 21 January 1997. The judge also found that the medical evidence showed that there was no material inability on the part of the applicant in April and May 1997: it appears that the applicant was able to obtain documents from the High Court in May 1998 which she thought would assist her case and that she was therefore able sufficiently to switch her mind to the preparation of a notice of appeal. In May 1999 the applicant had requested a reference from the agency that runs the Insolvency Service in order to obtain a part-time job. This, in the view of Lindsay J, showed that she was able to turn her mind to the possibility of returning to work. The judge also found that, if a new hearing was ordered as requested by the applicant, there would be a weakening of memory over a long period of time, as any hearing before the Employment Tribunal would be taking place, if the appeal succeeded, some eight years after the relevant events surrounding her dismissal.
9. Lindsay J found that this was not a compelling case that would warrant the exceptional step of granting an extension of time after such a long period, and he saw no good excuse for the totality of the delay. Further, there would be prejudice to the Insolvency Service in having a possible rehearing of her claim so many years after the event.
10. In her submissions, the applicant has clearly stated why she considers that the decision of the President of the Employment Tribunal is wrong. She says that he failed to take into account the delay by the Insolvency Service prior to the Employment Tribunal hearing when he was considering the totality of the delay in the case. He also failed to have regard to the extent to which she received threats in relation to a possible liability of costs. The Employment Appeal Tribunal took undue account of the alleged prejudice to the Insolvency Service from the delay and had failed to give sufficient account to the fact that the case was extremely well-documented. The Appeal Tribunal failed to take sufficient account of the medical evidence which was filed by her and failed to have sufficient regard to the strengths of her appeal against the decision of the Employment Tribunal.
11. I have considered all these arguments and the additional points which have been made by the applicant today. She has quite clearly been very unwell and is still distressed at what happened to her, both in her dismissal from her employment and in the tragic circumstances of her husband's sudden death. She has explained to me the personal problems which she had in the period following the hearing in the Employment Tribunal.
12. However, I have to return to the tests which I have to apply. Having examined the detailed judgment given by Lindsay J, I am unable to find that he has in any way misdirected himself as to the relevant legal principles or that he has failed to take into account relevant matters or has taken into account irrelevant matters. He made a decision which was well within the four corners of his discretion, and in those circumstances there is no real prospect of this court on a full appeal interfering with his exercise of discretion.
13. In those circumstances, the applicant will be disappointed to learn that I do not think this is a case in which it is right to grant permission to appeal.
ORDER: Application refused