United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS A SMALL OF COUNSEL ON BEHALF OF THE APPELLANT
For the Respondent	MR DAVID READE (OF COUNSEL) INSTRUCTED BY: MESSRS KENNEDYS SOLICITORS LONGBOW HOUSE 14-20 CHISWELL STREET LONDON EC1Y 4TY


 


MR JUSTICE LINDSAY (PRESIDENT):

1. This is an appeal against the refusal of the Registrar to extend time for the lodging of a Notice of Appeal that otherwise is out of time. I have before me Mrs Small on behalf of Miss E H Edwin, the Appellant, and Mr Reade appearing for Riverside Community Healthcare NHS Trust, the Respondent.
2. The position is that on 20^th May 1998, Mrs Edwin presented to the Industrial Tribunal, as it then was, an IT1 form claiming breach of contract, conspiracy, harassment and victimisation, unfair treatment, unlawful deduction of wages and racial discrimination. The Respondent NHS Trust, entered an appearance to that Application on 21^st July 1998 and then, on 16^th October 1998, there was a second IT1 lodged by Miss Edwin, claiming race discrimination, victimisation, harassment, unfair dismissal and, on the second occasion, giving as the date of her employment having ceased the 9^th September 1998. There was a very considerable typed Addendum to that IT1, some 14 pages long in close typing, signed by Miss Edwin as Applicant and giving details of the nature of her claim. That produced a second appearance by the Respondent on the 2^nd January 1999, and so the matter was framed and went before the Tribunal for a hearing on a number of days, the 19^th, 20^th , 21^st , 23^rd April 1999.
3. The hearing was at London North under the Chairmanship of Mr P R K Menon and on 5^th July the unanimous decision of the Tribunal was sent to the parties. The two IT1's were dealt with together. As to No. 255/98, the Applicant's complaint of race discrimination failed and was dismissed and, as to the other one, 088/98, the Applicant's complaint of race discrimination and victimisation and unfair dismissal failed. The complaint of race discrimination against some further Respondent's, Mr P Dryden & Miss Noreen Lee, were dismissed on withdrawal.
4. Miss Edwin, at that hearing, over those days in April 1999, had been assisted by Mr J Long, a friend. So far as concerns "appearances" the decision of the Employment Tribunal says "For Applicant: in person (assisted by Mr J Long, a friend)". That decision having been sent to the parties on 5^th July, the time for the punctual lodging of a Notice of Appeal, expired on 16^th August but that date came and went with nothing having been lodged. On 18^th August - and this is the case mounted by Miss Small today - papers which had been given to Mr Long in order for him to prepare a Notice of Appeal, were returned to Miss Edwin. On 25^th August 1999 Miss Edwin dated a Notice of Appeal which is in her own hand and prepared by her. That was actually received by the Employment Appeal Tribunal on 27^th August.
5. In the ordinary way the Employment Appeal Tribunal then consulted the Respondent Trust and in their letter of 20^th September 1999 the Trust opposed any extension of time and gave reasons for their opposition. On 25^th September, by letter, Miss Edwin, now, I think, assisted by Mrs Small, countered the opposition of the NHS Trust. She made the point in that letter that Mr Long had repeatedly told her not to worry but that a Notice of Appeal was being prepared. On the 6^th October, the matter came before the Registrar, who refused the extension of time. On 18^th October, there was a letter received at the EAT setting out Miss Edwin's case for there being an extension of time, and, again, it is plain that there was legal assistance from Mrs Small in relation to that letter of 18^th October. There is an appeal against the Registrar's refusal which I have mentioned.
6. The Tribunal's decision was sent to the parties on 5^th July and such decisions, when they are sent out, have printed on them details of how to appeal and details also of the time within which an appeal can be accepted. The printed form makes it quite plain that an appeal has to lodged within 42 days of the decision being sent to the parties. Time, therefore, expired, as I have indicated, on 16^th August. No Notice of Appeal was received until 27^th August, it having been dated on 25^th. Miss Edwin was aware herself of the time limit. What she says in her letter of 18^th October is, by reference to the Abdelghafar case:-

"(iii) One of the examples given in the Arab Emirates case as a poor reason is that of oversight of the time limit by a solicitor. I stress that this is not analogous of my situation in that I was aware of the time limit but due to illness I had little choice but to rely on Mr Long who is not a solicitor. He consistently reassured me that I was well within time, and that he would lodge my appeal before the time limit expired. Further details are outlined in my letter".

So she was aware of the time limit.

7. It is significant, perhaps, and Mr Reade comments on this, that nothing has been heard from Mr Long. It would have been perhaps a more impressive application if Mr Long had been able to say that he had indeed, time after time, said to Miss Edwin that, yes, he would prepare a Notice of Appeal and yes, it would be in time. We have no evidence of that character, but let that be assumed in Miss Edwin's favour. The only informed independent medical evidence that was originally before me in relation to Miss Edwin's condition was a letter that related to the position on 22^nd September 1998, and was, therefore, thoroughly out of date and really had no logical necessary connection with the state of her health in the relevant interval, in between the 5^th July 1999 (when the decision was sent to the parties) and the 16^th August 1999 (when time for a timely Notice of Appeal expired). But, this morning, there has been handed in further medical evidence by way of letters.
8. The first of the two letters is dated 30^th March 1999 and speaks of Miss Edwin suffering from anxiety neurosis, hypertension, angina and dacryostenosis. She had intermittent chest pain at that time, and depression and pain in her left arm. The writer, Dr Basu, who had also written the earlier letter which dealt with the position as at September 1998, said that in Mrs Edwin's then present state, in his opinion, should she return to work, she would not be able to perform her normal duties. However, that is very far from indicating her inability at any stage in and around March 1999 to compose a Notice of Appeal. That she would not be able to perform her normal duties indicates that she was not utterly without ability to do some things, one would think, and, in any event, that Notice or letter, is, as I have mentioned, dated 30^th March 1999.
9. More up to date was a letter from Ealing Hammersmith and Fulham Mental Health Trust, written by Professor Steven Hirsch on 8^th June. There, he says, from a psychiatric point of view, she does not have a psychiatric condition which is disabling but her overall condition, taking into account her cardiac condition, her age, and the fact that she had been laid off work, was such that she was, he believed, is I believe, unable to seek further employment. The letter said "As you will know from her general practitioner, she has suffered from the current chest pains and is diagnosed as having mitral regurgitation, but it was felt to be functional and not pathological". Again, as it seems to me, that is far from indicating inability to compose or to recognise the need for the lodging of a Notice of Appeal. Perhaps, in practical terms, the greatest difficulty, by way of any reliance upon medical condition is that, in fact, in August 1999, Mrs Edwin did indeed compose and lodge and write a Notice of Appeal (namely the one that was lodged on 27^th having been dated 25^th August) and there is no indication that her evident ability then to compose her Notice of Appeal was a matter that represented some then-recent change in her condition.
10. It seems to me that the medical aspect of things is therefore of no real assistance to Miss Edwin and the fact that she relied on Mr Long does not assist her either to give a truly acceptable explanation because she knew of the time limit. She must have been able to see that it was coming up without anything having been received from Mr Long, and there must have come a time, or there should have come a time, at which she should have abandoned reliance upon Mr Long's assurances (assuming, as I am doing, that they were given) and then have set about herself preparing a Notice of Appeal, as eventually she did on 25^th August.
11. It seems to me that directing myself by reference to the Abdelghafar case to which Mrs Small has properly drawn my attention, I must take the view that here no adequate explanation is given for the delay between the expiry on 16^th August 1999 and the lodging of a Notice of Appeal received on 27^th and no adequate explanation, either, of the failure throughout the 42 days to set about the preparation of a Notice of Appeal earlier than took place. All in all, I must dismiss the appeal.