United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 957_93_2102

Appeal No. PA/957/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 February 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

IN CHAMBERS

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MR M G FOOLCHAND          APPELLANT

MID-SURREY HEALTH AUTHORITY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant IN PERSON

For the Respondents MR AKHIL SHAH

(Of Counsel)

Messrs Capsticks

77/83 Upper Richmond Road

London

SW15 2TT


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal by

Mr M G Foolchand against the decision of the Registrar in an order dated 3 August 1994. After due consideration of Mr Foolchand's application for an extension of time to enter a Notice of Appeal and of the representations made against an extension on behalf of the Respondent, Mid-Surrey Health Authority, the Registrar refused to grant an extension of time. Mr Foolchand wrote on 22 August appealing against that decision.

At the hearing of the appeal today, Mr Foolchand has represented himself. Mr Shah has appeared on behalf of the Health Authority. The proceedings by Mr Foolchand were commenced on 8 July 1991 when he presented an application complaining of victimisation because he had brought proceedings against the employer under the Race Relations Act and constructive unfair dismissal by forcing him to retire. The Industrial Tribunal held at London South on 6 August 1993 heard the case. Mr Foolchand was represented by a representative from the Citizens Advice Bureau and Counsel (not the same Counsel who has appeared for the Health Authority today) represented the Respondent.

The Tribunal unanimously decided that it had no jurisdiction to hear the complaint of constructive dismissal, dismissed the complaint of victimisation and ordered Mr Foolchand to pay within twenty-eight days the sum of £500 costs to the Respondent. According to

page 7 of the Decision, it was entered in the Register and copies were sent on 8 August 1993. That is an error. When Mr Foolchand applied for an extension of time for appealing he pointed out that the Decision had not been received by the Citizens Advice Bureau till the

27 August. He received it on 30 August from the CAB. He pointed out that the original promulgation date of 8 August had since been corrected to the 23rd August and he enclosed the letter with the correction. The position is that Mr Foolchand had forty-two days from

23 August in which to appeal against the Decision. Under Rule 3 of Employment Appeal Tribunal Rules 1993 `an appeal shall be instituted by serving on the Tribunal a Notice of Appeal within forty-two days from the date on which extended written reasons for the Decision or order of the Industrial Tribunal was sent to the Appellant.' That rule is in substantially the same form as the 1980 Rules which were in force down to the 16 December 1993.

Mr Foolchand did not appeal within the forty-two day period. His Notice of Appeal was received by fax in the EAT on 7 October 1993 which is three days late. Mr Foolchand then applied for an extension. The grounds on which he sought the extension have been explained on the basis of what was said by him in two letters written to the EAT on 15 June and 29 July 1994. He pointed out in the 15 June letter that he had not received the Decision until 30 August. He pointed out the correction of the promulgation date from 8 August to 23 August and then said "I understand from the regulations that the relevant decision day is the 24th August 1993 and the calculation day is 7th October 1993, but I would like to ask for the sympathy and understanding of the Appeal Tribunal for leave to appeal out of time as I have been suffering severely from depression and was on medication during the relevant period".

The reference to the relevant decision day and the calculation day are taken from a notice attached to the Decision referring to calculations of interest under the Industrial Tribunals Interest Order 1990. In that document it is stated that the relevant decision day is 24 August and the calculation day is 7 October. Mr Foolchand amplified that letter by the later letter of 29 July 1994, where he referred to his complaints of victimisation and he then referred to his medical condition. He said "In reference to the question that I did not have any medical evidence to support my sickness; which did not in fact permit me to appeal. I can prove with the support of present medical certificate that I am still suffering from depression and I am still on medication for this purpose. Please find copy of medical certificate enclose. The Citizens Advice Bureau did not appeal on my behalf because I was very depressed and they did not know what will my decision be". Attached to that are medical documents referring to anxiety and depression over a considerable period and to hospital treatment. Mr Foolchand explained that his state was one of such depression that he was not able to go out or leave the house to go to the Citizens Advice Bureau. It appears to be implied in what he is saying that his mental state was such that he was unable to reach a decision on what to do.

He had, however, reached a decision by the first week of October 1993, sufficient to get the Citizens Advice Bureau to complete a Notice of Appeal and send it in out of time. The question on the appeal from the Registrar's refusal is whether Mr Foolchand has demonstrated that there was an excuse for failure to comply with the time limits such as to justify the Tribunal taking the exceptional course of allowing an appeal to be brought after the expiration of the six weeks period. The excuse which Mr Foolchand relies upon is his depressive illness. The submission made by the Health Authority is that no extension of time should be granted and that the Registrar was right to refuse. It was pointed out that there was no evidence to support his contention of depression. In any case that would not prevent his advisers from preparing and lodging a Notice of Appeal in time. He had been represented by the Citizens Advice Bureau at the Industrial Tribunal Hearing. He was represented by them at the time when his Notice of Appeal was put in out of time. They were aware of the position because, as Mr Foolchand explains in the letter, the Decision had been notified to the Citizens Advice Bureau who in turn passed it on to Mr Foolchand.

Mr Shah, on behalf of the Health Authority, made a number of other points to the effect that there was no merit in the appeal such as would justify the grant of an extension, that Mr Foolchand had been given a costs warning in this case at a pre-hearing assessment and an order for costs had in fact been made against him on the dismissal of his case. It is submitted that there is no point of law raised in his appeal. As to those points I do not attach a great deal of weight. The important question is has Mr Foolchand shown a satisfactory excuse for not getting a Notice of Appeal in within the forty-two days? In my view, he has not. Whatever state of sickness he was suffering from, there is no evidence to explain why the Citizens Advice Bureau were not able to put in a Notice of Appeal within the six week period. Mr Foolchand says that he was not in a state where he had made up his mind, but it would have still been open to the Citizens Advice Bureau acting on his behalf, if he had given some indication of his dissatisfaction with the Decision, to put in a Notice of Appeal to protect his position. They continued to act for him throughout. In my view, the Registrar was right to refuse an order. No satisfactory excuse has been shown for failure to serve a Notice of Appeal within the forty-two day period. The appeal is therefore dismissed.