United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A KENNEDY (Solicitor)
For the Respondents	MS I OMAMBALA (of Counsel) Messrs Pothecary Barrett Solicitors Talbot House Talbot Court Grace Church Street London EC3V 0BS


 


MR JUSTICE LINDSAY (PRESIDENT): I have before me the appeal of Mr B Brown in the matter Brown v The Methodist Council. Mr Brown appeals against the Registrar's refusal to extend time for the presentation of his Notice of Appeal, which was 21 days late. The appellant appears before me today by Mr Kennedy and the Methodist Council by Ms Omambala.

1. So far as concerns the chronology, on 3rd August 1999 Mr Brown lodged an IT1 claiming disability discrimination. The particular kind of disability he spoke of is described in paragraph 1 of his details of complaint. It says:

"… The Applicant had dropped a packing crate onto his left foot in Mid May 1998. He overcompensated for this injury and damaged his right knee. This in turn caused him to damage his right foot such that he is unable to walk effectively without the aid of a walking stick and even then with difficulty."

That is the allegation as to the nature of the disability.

2. On 1st September 1999 there was an IT3 from the Methodist Council and they say, inter alia:

"… The Applicant had not asked the Respondent to regard him as a disabled person within the meaning of the Disability Discrimination Act 1995 or at all.

The Applicant was informed that his job would no longer exist in January 1998. The Respondent attempted to redeploy the Applicant but no permanent position could be found or created. On 4th May 1999, the Applicant was informed that no permanent post could be found for him. It is denied that the Applicant was advised that his redundancy became apparent whilst he was off sick."

That gives some flavour of the nature of the underlying case.

3. On 25th October there was an IT1 from Mr Brown as to unfair dismissal and on 16th November an IT3 from the Council resisting that part of the claim.
4. On 16th and 17th March 2000 there was a hearing at the Employment Tribunal at London (North) under the chairmanship of Professor A C Neal. On 5th May the decision was sent to the parties with extended reasons.
5. The unanimous decision was that:

"(i) The Applicant was not unlawfully discriminated against by the Respondent under Part II of the Disability Discrimination Act 1995;

(ii) The Applicant was unfairly dismissed by the Respondent.

On hearing the parties in relation to quantum the Tribunal finds that the Applicant is entitled to nil compensation in respect of unfair dismissal."

That, as I say, was sent to the parties on the 5th May 2000.

6. To add some dates to the chronology which were not apparent at the time, at any rate not to all parties, on 15th May Mr Brown's solicitors applied for a review of that decision. On 23rd May, at short notice, it was indicated to him that he would need to go to hospital on the following day. On 24th May he had an operation in hospital and a later letter of Messrs Wedlake Saint, solicitors to Mr Brown, say this, in respect of that:

"Unfortunately due to an operation on the 24 May 2000 and due to ongoing treatment, the Appellant was unable to provide instruction to us to pursue the Appeal. The pain killers that the Appellant had been given, combined with the anti-inflammatory drugs had a serious and adverse effect on the Appellant's day to day functioning and for this reason the Appellant was unable to appeal within the requisite 42 day time limit.

We enclose a copy of a letter from the Appellant's GP in support of the above.

Please treat this letter as the Appellant's application for an extension of time to lodge the appeal. We understand that this application may be heard by the Registrar and look forward to receiving a date for this hearing if necessary."

The letter from the general practitioner, Dr Jonathan Freedman, dated 28th June, reads as follows:

"This is to confirm that on the 24th May 2000, Mr Brian Browne was admitted to St Albans City Hospital to remove veins in his left leg. The operation was carried out under general anaesthetic in the Surgical Day Centre by Mr Khan. Whilst Mr Browne was sent home for recovery he was not discharged totally by Mr Khan until 21st June.

During this period of convalescence Mr Browne was prescribed Co-Dydramol and Diclofenac Sodium tablets for the relief of pain and as anti-inflammatories. Debilitating side effects from this medication are drowsiness and disorientation, and would have made day to day functioning for Mr Browne, very difficult."

7. On 30th May the review application was declined and the Chairman wrote:

"This is properly a matter for appeal."

8. On 16th June, the 42 days from the sending out of the decision on 5th May expired and hence, at that stage there being no Notice of Appeal lodged, Mr Brown was out of time.
9. On 30th June the Notice of Appeal was received – 14 days late.
10. On 4th July the Employment Appeal Tribunal, as is usual in these cases, sought the views of the respondent. On 11th July the respondent's solicitors, Pothecary & Barratt, said, inter alia, this:

"By letter dated 15 May 2000, Messrs Wedlake Saint had applied to the Regional Secretary of the Employment Tribunals (London North) for the decision herein to be reviewed under Rule 11, Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. The facts in support of the application for the review are essentially the same as the grounds for appeal.

It is, therefore, self-evident that the only instructions which the Appellant was required to give his solicitors were whether or not the matter should be appealed if the application for a review failed. Either, this would have been discussed at the time when instructions were given to seek a review, or, alternatively, it was within the Appellant's ability to give such a straightforward instruction. Alliteratively, the Appellant's solicitors should have advised the Appellant that an application for a review of the decision had no prospects of success and that it would be necessary for him to appeal the same. In which case, the Appellant's remedy is against his solicitors and it is inequitable that an appeal should be accepted out of time."

11. On 13th July Mr Brown's solicitors replied to that. They dealt with the response of the Chairman in relation to the application for a review. They say:

"A response was received from the Chairman on 30 May, by which time my client had been admitted to hospital and was undergoing a course of treatment. Despite attempting to contact my client on several occasions he was unable to give instructions and it was not until the last week in June that we were able to speak at which point I was instructed to proceed with the Appeal.

As by this time the 42 day period to appeal had expired I was aware that an application to the registrar would be necessary and in support of that application endeavoured to obtain a letter from my client's GP. Having received this on the 29 June the appeal was immediately submitted."

A little later they say:

"… To exclude my client from his right to appeal would result in an injustice through no fault of his own or his solicitors but merely because he is of limited means, had to undergo an operation and was suffering the effects of strong medication."

12. On 19th July the Registrar made her order. It includes the following:

"AND UPON DUE CONSIDERATION of the fact that the Appellant has had access to legal advice where the procedures regarding the importance of time allowed in which to appeal are well known

AND UPON DUE CONSIDERATION of the judgment given in UNITED ARAB EMIRATES AND (1) MR ABDELGHAFAR (2) MR A K ABBAS there has been shown no exceptional reason why an appeal could not have been presented within the time limit laid down in paragraph 3(2) of the Employment Appeal Tribunal Rules 1993

IT IS ORDERED that the application for an extension of time in which to present the notice of appeal is refused"

13. On 24th July Mr Brown indicated that he wished to appeal against the Registrar's order.
14. On 23rd November Mr Brown's solicitors submitted a skeleton argument and an affidavit, particularly making the point that Mr Brown had been admitted to hospital on very short notice. There are some passages in the affidavit of Mr Brown to which I need to refer, thus in paragraph 4 he says this:

"… I had been waiting for the operation for some time and the date for the operation was given to me at short notice. When I initially contacted my solicitors at the beginning of May 2000 I was not aware that I would be going in for an operation on 24 May 2000. I had seen my consultant and it was agreed that I would go in for the operation but was advised that I would be waiting some time unless there was a cancellation."

In paragraph 5 he says:

"… Although I was concerned about the costs of appealing I did intend of making the appeal to the Employment Appeal Tribunal withing the specified time limit and informed my solicitor that I would confirm instructions on the appeal once I had seen the Tribunal's response to the request for a review."

Paragraph 6:

"As I have stated I was called in at short notice for an operation on 24 May 2000. I received a telephone call from my consultant on the 23 May 2000 asking me to report to the hospital the following day. …"

Paragraph 8:

"… However, the medication had a serious side effect of which I had not been warned. My day to day functioning became seriously impaired and I was suffering major problems with my short term memory. For example, I would completely lose track of a conversation in mid-sentence and would forget things that had happened minutes earlier. I could not concentrate on anything and my potential appeal was not something that I was able to think about at that time."

Paragraph 9:

"Although I was discharged by my consultant on 21 June 2000 I was still, and remain to this date, taking medication after discharge. This was, and still is, having an adverse effect on my functioning. However, it was not until after I was discharged when the quantities of drugs being given to me were reduced, that I was able to instruct my solicitor further. …"

In paragraph 11:

"… I will soon being seeing my consultant to try and find an alternative to my medication as my consultant is very concerned about the unusually severe side effects I have suffered as a result of the prescribed medication."

15. On the day before that, 22nd November (although it was not supplied to the EAT until this morning and I doubt it was supplied to Mr Brown's solicitors earlier than that) there was complied a report by Mr R J Williams, Consultant Surgeon, of 16 St John Street, Manchester and he says, speaking of one of the two drugs that Mr Brown was given, speaking here of Co-Dydramol, that it can cause some complications which might include nausea, vomiting, severe constipation, drowsiness, respiratory depression and the risk of dependence, but that they are unlikely following only short-term usage. Of the other drug supplied, Diclofenac Sodium, he says:

"There are many drugs in this category but Diclofenac Sodium has emerged as one of the first choices because it combines good efficiency with a low incidence of side effects. In general there are potent and serious complications associated with the administration of NSAIDs and these include gastrointestinal discomfort, nausea, diarrhoea, gastrointestinal bleeding and ulceration, hypersensitivity reactions in particular angio-oedema and bronchspasm, headaches, dizziness, vertigo, hearing disturbances, photosensitivity, haematuria, blood disorders, fluid retention, heart failure, renal failure, liver damage, pancreatitis and many more very rare complications. Drowsiness and disorientation are not complications of these drugs."

And then he says, speaking of the combination which Mr Brown was taking, of Co-Dydramol and Diclofenac Sodium:

"… I know of no pharmacological evidence to suggest that the combination of these two drugs could have produced these alleged debilitating and incapacitating side effects."

Whether there is any such pharmacological evidence I do not know, but Mr Williams say he does not know of it.

16. Mr Williams has not seen Mr Brown or examined him and he has not had access to Mr Brown's medical records. He can only therefore speak in general terms of what are regarded as the customary effects of those two separate drugs and of their combination. I cannot regard his evidence as displacing the evidence of Mr Brown himself and Mr Brown's general practitioner. Mr Williams' written report certainly provides an expert reason to doubt Mr Brown's evidence but Mr Brown was speaking on oath and I cannot say that Mr Williams displaces that oath. I really could not, in the circumstances, disbelieve Mr Brown's oath without cross-examination. That is not only not sought but would in any event be disproportionate to the kind of application which is in front of me. I do not feel able to disregard Mr Brown's affidavit as to the side effects that he suffered.
17. I see that there is no prejudice to the Methodist Council alleged, save for the inevitable prejudice that they might have to deal with an appeal which otherwise would not have to vex them at all. There is nothing special beyond that.
18. Secondly, the merits of the appeal are not proper to be gone into at this stage. Both the parties before me accept that, but, having looked at the papers, I cannot describe the appeal as doomed to failure and I need say nothing more than that.
19. It is not unreasonable, as it seems to me, where an applicant has no reason to believe that doing so will put him out of time or will jeopardise his being in time, for him to wait the decision on a review. A review does offer a cheaper and quicker way of challenging a decision than an appeal and although the existence of a review by no means justifies lateness in lodging the appeal, it seems to me not unreasonable in the circumstances that I have mentioned, where waiting for it is not thought to jeopardise the lodging of an appeal, to first wait the result of the review.
20. Mr Brown had no reason, when he elected to wait for the result of the review round about 15th May, to believe that doing so would put him out of time. Indeed, the subsequent events showed that, given that the decision on the review was available on 30th May and the time for appealing expired on 16th June, that without the complications on the medical side, he would have been able to lodge a review, one would think, in that interval between 30th May and 16th June. But then he was called to hospital on 23rd May and even then one would think he had no particular reason to believe that he would not be able to lodge an appeal by 16th June. But then there was not only the operation, which in itself seems relatively simple, but the associated drug regime and the side effects which he speaks of and which, as I say, I cannot regard as displaced by the medical evidence of Mr Williams. It had a prolonged and adverse effect which had not been anticipated.
21. Equally, the solicitors acting for Mr Brown, it seems to me, acted reasonably in awaiting instructions. It would be wrong of them to anticipate instructions to appeal. They certainly acted promptly enough and no complaint is made as to the delay after they were instructed to go ahead and lodge an appeal. They collected medical evidence as we have seen.
22. I have, as it seems to me, no reason to disbelieve - some reason to doubt, but no reason to disbelieve - the version of events which Mr Brown puts in front of me as the post-operative complications and the effect of the drug regime. In my judgment, that does provide here what I must take to be an explanation which is honest and full, certainly in the absence of cross-examination to establish otherwise. It does, in my judgment, provide, taken together with the other factors I have mentioned, an exceptional ground for an extension of time. Accordingly, I allow the appeal and extend time to the 30th June, thus validating the Notice of Appeal which was lodged on that day.