England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
EMPLOYMENT APPEAL TRIBUNAL
(HER HONOUR JUDGE MCMULLEN QC)

		Royal Courts of Justice Strand London, WC2A 2LL
		17 December 2004

1. LORD JUSTICE WALL: This is an application by Ms McFarlane for permission to appeal an order made by His Honour Judge McMullen QC sitting in the Employment Appeal Tribunal on 7 October 2004. The judge refused Ms McFarlane's application to extend the time for filing her notice of appeal against an order of the Employment Tribunal of 31 March 2004 which had struck out her claim.
2. The Registrar had initially looked at the papers. It was common ground that on the face of the documentation Ms McFarlane's Notice of Appeal was two days out of time. The Employment Appeal Tribunal applies strict rules to appeals because six weeks is allowed for filing a notice of appeal from a decision of the Employment Tribunal. The Registrar therefore took the view, rightly, that the appeal was two days out of time. She refused to extend the time. Ms McFarlane appealed that decision with reasons to His Honour Judge McMullen. His Honour Judge McMullen in a reasoned judgment upheld the decision of the Registrar.
3. The case before me has been put on a slightly different basis, and one which I think sufficiently raises an arguable point. Ms McMullen's point is that after the application was struck out she was in a state of considerable distress and stress. She was unable to make appropriate contact with the organisation that was assisting her with her case. By the time she did so, and was able to fix an appointment in order to formulate grounds of appeal, the time limit had just expired.
4. I am now told, and I think for the first time I am shown the document, that on 26 February 2004 Mr Boyd, a representative of the organisation in question, TPNA (The Peoples Network Advocates) wrote to the Employment Appeal Tribunal indicating that Ms McFarlane wished to notify her appeal immediately and to make the application as soon as possible. This was, of course, before her claim had been struck out by the Employment Tribunal. The Letter reads:

"We represent the above named Applicant who withdrew from presenting evidence in Tribunal on Tuesday February 24 2004 when a requested adjournment to remedy procedural irregularities was refused. The Applicant invited the Respondent to apply to have the case struck out so that she may appeal for re-instatement with the procedural irregularities remedied.

The Applicant hereby notifies her wish to appeal immediately, and to make that Appeal Application as soon as possible.

We are writing to you to ask that in this extended reasons matter a copy of the actual audio tape of the matter - in addition to the normal paper transcript - be made available to the Applicant for the purposes of both settling the Appeal grounds and allowing us further possible courses of action.

We are of course willing to remit the appropriate charges for the audio copy we are requesting."

5. It is now argued on her behalf that the letter of 26 February 2004 effectively represents the bare bones of a Notice of Appeal. The document subsequently sent to the court which, arrived two days late it is argued, was effectively the grounds of appeal so that the notice was in time and the grounds followed.
6. I do not know whether that argument will persuade the full court. It may well not, but I am conscious of the fact that Ms McFarlane's case was struck out in the tribunal and that she has not had the opportunity to appeal that strike out.
7. It seems to me that, on the basis of what I have been told, I should at least give her the opportunity to argue that the appeal to the EAT was in time or that time should be extended because of a combination of the letter of 26 February 2004 and the subsequent grounds. I do not know whether that argument will succeed; it may well not. It may well be that, ultimately, there is no merit in Ms McFarlane's appeal. That, however, will be for this full court to decide.
8. I will therefore grant permission to appeal. The appeal will be heard on its merits in due course.

Order: Application for permission to appeal granted. Time estimate 2 hours.