United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondents	MS L SPENCER (of Counsel) Instructed by: The Solicitor The London Borough of Southwark Town Hall Peckham Road London SE5 8UB


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by Ms Shona Juliet-Adams against the Registrar's refusal to extend time to enable the EAT to entertain an appeal which she wishes to make against an Employment Tribunal decision, which was promulgated on 11^th July 1997. By their decision, the Employment Tribunal, following a hearing extending from 9^th-13^th June 1997, dismissed her complaint of race and sex discrimination, but found in her favour in relation to an allegation that the employers had broken her contract of employment. The employers, the respondent to the application before the Employment Tribunal and to this appeal, are the London Borough of Southwark, by whom Ms Juliet-Adams had been employed.

1. The decision under appeal was sent to the parties on 11^th July 1997. The Notice of Appeal, in this case, was received by the Employment Appeal Tribunal on 5^th September 1997 and was thus some 10 days out of time.
2. The first question, therefore, is what is the explanation that has been advanced for delay in lodging the Notice of Appeal? The explanation that is advanced is that on 21^st August 1997 the applicant/appellant had been the victim of a robbery which involved a bag snatching from her and left her on the ground and with an injured back. She was not a stretcher case and was not, as I understand it, taken to hospital on that occasion, but she attended her General Practitioner on 23^rd August 1997, that is two days later, when she was given a certificate certifying her as unfit to work. The injuries described were "back injury following mugging on 21.8.97".
3. The applicant/appellant lives on her own in Council premises and had access to a fax machine and, therefore, a telephone and also her own personal computer which she used to generate her Notice of Appeal, which is not in proper form, and runs to some 57 pages.
4. The other medical evidence that is produced is a note from her doctor dated 5^th September, the date when she faxed through her extensive Notice of Appeal. That document indicates sickle cell problems and purports to certify her for the previous two weeks. In other words, it appears to be a backdating of her certificate, which would have covered part of the period, which had already been certified, prospectively by this certificate dated 23^rd August 1997.
5. During the course of the appeal hearing she was asked a number of questions by the Court as to whether it was her contention that she was incapacitated in the sense that she was disabled from making her appeal between the 21^st August and the last date for putting in her Notice of Appeal?
6. The appellant was truthful in her approach to these questions, in my judgment. I am satisfied that she has got convincing evidence that she was a victim of a mugging on 21^st August. It is plain that by that date she had largely if not entirely completed her extensive Notice of Appeal, although it had not been spell checked or checked through by herself. She was at home from that date onwards with access to her fax machine and personal computer. I am not satisfied that she was incapacitated from sending in her Notice of Appeal within time, as she aware of the 42 day time limit. She told me that the reason why she asked the doctor on 23^rd August for a certificate, whereas she had not asked for one when she says she first visited the doctor on 21^st August, was because it must have dawned on her that there was a problem over time in getting her Notice of Appeal in to the Employment Appeal Tribunal and she therefore required a sick note in support of her position.
7. In my judgment, she was in a position to communicate with the Employment Appeal Tribunal and to inform the Court, if such were the case, that she was having problems in completing the Notice of Appeal within time; that there had been a disaster which had overcome her at the last minute; and notifying the Employment Appeal Tribunal that a better or completed Notice of Appeal would be sent as soon as she was fit to do so. I am not satisfied that in fact she was incapable of faxing through the Notice of Appeal which was substantially complete by the time that time expired.
8. In these circumstances, although I have accepted the grounds on which the application for an extension of time has been made, I am not prepared to say that those grounds provide a reasonable or good excuse for her failure to get the Notice of Appeal within time. I recognise and accept that sickle cell anaemia is a pervasive illness, which is inherited, and which can be painful and is exacerbated by stress and by incidents such as the mugging. It was not surprising, therefore, to find the second medical certificate referring to sickle cell anaemia. However, it is significant, as it seems to me, that in neither of the medical certificates was there any suggestion that her psychological condition was a worry, or that she was in any way incapacitated from dealing with her own affairs. Indeed, she was able to cope with the normal day-to-day activities, living, as she did, on her own at that time.
9. I have also looked at the Notice of Appeal, I have indicated that it is not in proper form, simply being a re-argument of the points which she raised before the Employment Tribunal. It would not qualify, in my view, as a Notice of Appeal raising arguable points of law. Therefore, by not extending time I am not depriving the appellant, I think, of anything of value.
10. Taking all the matters into consideration, as I do, this is not a case where I think it appropriate in the exercise of my discretion to extend time, the appellant could and should have done more than she did to get the documents to the Employment Appeal Tribunal and alert the Employment Appeal Tribunal of any problems she was experiencing. I therefore conclude that the Register's order was correct and the appeal against it must therefore be dismissed.