United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR S NEAMAN (of Counsel) Instructed By: Messrs Cameron McKenna Solicitors Mitre House 160 Aldersgate Street London EC1A 4DD


 


MR JUSTICE MORISON (PRESIDENT): The issue on this appeal is whether time should be extended to enable the Appellant, Mr Meme, to appeal against a decision of an Employment Tribunal promulgated on 19 October 1994.

1. The Tribunal decided that Mr Meme's former employers, Lloyds Bank Ltd, the Respondent to his complaints and to this appeal, had not unlawfully discriminated against him contrary to the Race Relations Act 1976 and accordingly, his complaint under that Act was dismissed. But secondly, by a majority, his dismissal was unfair but thirdly, unanimously, there was to be no award of compensation.
2. There is a 42-day period for lodging a Notice of Appeal. In this case the Notice of Appeal was received 215 days out of time.
3. Owing to an administrative error, the Employment Appeal Tribunal dismissed his appeal against the Registrar's refusal to extend time for the lodging of the Notice of Appeal, although Mr Meme was not aware that the appeal was going to be heard.
4. The order made by the Employment Appeal Tribunal was set aside, when the administrative error came to light. Mr Meme had notified the Employment Appeal Tribunal of his new address, yet due to a failure in the office that information was not acted upon.
5. The issue on the appeal is therefore a discretionary one for the court. Mr Meme's explanation for the delay in lodging a Notice of Appeal relates to a number of personal difficulties which he has sustained in the recent past. In the first place his father died of cancer during the hearing of his case before the Employment Appeal Tribunal. His elderly mother was also ill. The loss of his job with Lloyds Bank brought some collateral damage, as he put it. His marriage broke down due to difficulties about finance and he had to move out of the matrimonial home. He was engaged in divorce proceedings. And finally, he had been traumatised, as he put it, by these catalogues of events, all occurring within the same period of time. As a result of this he suffered from acute stress, sleepless nights and depression. He says that he has needed help and support and has in fact, on occasions, contemplated what he describes as 'the unthinkable', but now feels for the first time in five months strong enough mentally to deal with the appeal. Essentially, therefore, he is saying that he was not in a mental frame of mind such that he felt able to cope with his life. His priorities were obviously directed elsewhere and that that explained the delay.
6. In support of his explanations for the late service of the Notice of Appeal he produced a medical report dated 14 October 1994 (five days before the decision under appeal was promulgated). This document, addressed "To whom it may concern", and signed by a medical practitioner, practising in Lagos, Nigeria, certified that "He is suffering from acute depression probably due to the effect of his fathers recent death and the stress of arranging, and conducting the burial ceremonies afterwards". The doctor said that in his opinion, in view of the patient's medical mental state, he might not be able to carry out his normal duties and that it would be difficult to predict when he would be back to normal. He opined that in similar cases complete recovery takes from a few weeks to several months.
7. It is clear that Mr Meme found the hearing of his appeal against the Registrar's refusal to extend time distressing. The critical issue, as it seemed to me, was whether Mr Meme was disabled in some way from presenting his appeal within time and, therefore, I asked a number of questions about the past history to seek to ascertain where he was and in what frame of mind. As a result of those enquiries I am satisfied that, although he was plainly suffering from severe depression for a long part of the period concerned, he was not incapacitated from presenting a Notice of Appeal within time.
8. This is a case, therefore, where I am satisfied that I have been given a bona fide explanation for the delay but I am not satisfied that it represents any sensible excuse for the delay in advancing the Notice of Appeal.
9. Furthermore, the decision under appeal was a reserved decision of an Employment Tribunal presided over by Mr M. Rich. The decision was given by this very experienced Chairman, following an 8 day hearing. Although it is difficult to form any concluded view about the prospects of success of an appeal, I have to say that it does seem to me that this is not a case where it is obvious that the Tribunal have erred in law.
10. The object of the rules as to time limit is clear. I have a discretion to exercise. I am not satisfied, having regard to all the circumstances, that it would be just to extend time in this case. The Employment Tribunal decision was a long time ago. Lloyds Bank Ltd were entitled to regard the matter as at an end after the expiry of the 42 day period. The medical evidence provided by Mr Meme is 'thin'. It seemed to me that, whilst he was depressed for some period of time, he gradually was recovering and although it is difficult to put a date on it, it does seem to me that Mr Meme has failed to establish that he was incapacitated throughout the whole of the period of the delay in this case. Indeed, on the contrary, I was satisfied from the answers he gave that it would not be possible to say that the reason why he did not put his complaint in within 42 days, or within a very short period thereafter, was because he was incapacitated and unable to do so.
11. Accordingly, therefore, I am satisfied that the appeal should be dismissed.