United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondents	No appearance or representation by or on behalf of the Respondents


 


MR JUSTICE LINDSAY (PRESIDENT)

1. This is the adjourned hearing of Mr M A Din's appeal against the Registrar's refusal to extend time for his late Notice of Appeal. No one appears before me for Mr Din. The Second Respondent, Aviation Defence International Group Ltd, have put in a letter opposing relief being granted to Mr Din; the First Respondent, Mr Behan, has not put in anything.
2. I said that this was an adjourned hearing; it was last before me on 19 March of this year and it is necessary to read the judgment that I gave on that day as a prologue to today's business. Mr Din had claimed unfair dismissal and racial discrimination.
3. The Decision of the Employment Tribunal was sent to the parties on 19 June of last year and time therefore expired for a timely Notice of Appeal on 31 July of last year. Nothing was received until 10 September last year. The Notice of Appeal actually received was dated 7 September.
4. Mr Din sought to explain his delay by reference to his medical situation, but, as at 19 March, when I first heard the matter, there was no medical evidence at all. Accordingly, I gave a judgment that said this:

"6 Today we have heard by e-mail that Mr Din says that he is not well enough to travel and that he is receiving treatment for cancer. It cannot suffice for Mr Din, or anyone else in his position, merely to state that he has attended hospital or has suffered some medical condition but, equally, it would be unfair to deny Mr Din the opportunity of putting in proper evidence on the subject to show that he truly was impaired as to, or denied, the ability to lodge a timely Notice of Appeal and so I will adjourn this matter generally in order that Mr Din, or someone on his behalf, could put in one or more affidavits.

7 They should cover these subjects: first of all his state of health generally in June, July and August 2001, with particular reference to his ability or not to complete a simple Notice of Appeal or, at the minimum, a letter explaining why he could not complete a Notice of Appeal. Secondly, whether he attended work in those months, or how otherwise his time was spent during those months. Thirdly, if he was admitted to hospital, something that indicates when he went in and when he came out.

8 Next, the effect on him in those months, of any treatment that he was given at the time. The evidence that needs to be lodged on his behalf on all questions relating to his health needs to include informed expert medical evidence such as, for example, evidence from his own GP or, if he went to hospital, evidence from the hospital doctors, staff or surgeons. He would be well advised to seek doctors' letters or medical certificates or hospital admission letters that confirm the case that he wishes to make relating to his general condition, as I mentioned it, in those three months.

9 If no such informed medical evidence is produced, well then, he must be aware that he runs a real risk that he will fail to obtain the extension of time for the lodging of his Notice of Appeal which he seeks."

5. Unfortunately, the only material received at the Employment Appeal Tribunal since 19 March is a letter of 27 March which comes from the Christy Hospital NHS Trust in Manchester which says this:

"I am writing to confirm that Mr Din is a patient at the Christie Hospital and has been receiving treatment for cancer of the pharynx.

He was an inpatient with us on two occasions during the period of June - August 2001. These dates were:

5 July - 6 July

26 July - 28 July

Mr Din also attended the outpatient department for clinics on the following dates in the same period:

5 June 19 June 17 July 7 August 21 August"

and it is signed by "A J Sykes, Consultant in Clinical Oncology".

6. So one gathers from that that Mr Din was an inpatient within the forty two days, on 5 and 6 July 2001 and 26 - 28 July 2001 and an outpatient only on 17 July, within the forty two day period. That hardly provides a good explanation of itself for a failure to put in a Notice of Appeal within the forty two day period. Mr Din, after all, put one in, in handwriting, on 7 September 2001, and it is hard to see why, if he could have done it then, he could not have done it within the forty two day period.
7. Of course, I recognise that treatment for cancer can be disabling, and the threat of cancer and, perhaps, intimations of mortality, can be expected both to concern and distract a patient to some degree, but neither of those things necessarily occurs in every case and it is striking how inadequate is the response to the detailed, and, I hope, not unreasonable requirements that I set out in my judgment on 19 March. Nor is there any explanation of why the further information has been so very scanty.
8. All in all, in the circumstances, I cannot take the medical ground relied upon as amounting to a good excuse for the lateness in the Notice of Appeal. I have to bear in mind the guidance given in the Abdelghafar case and also the judgment of the Court of Appeal in the subsequent case of Aziz -v- Bethnal Green, and, bearing in mind the guidance that those two cases give, it seems to me I have no option but to dismiss the appeal.