United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M HAKIM (Mr Hakim in Person)
For the First Respondent	MR DAVID WRIGHT (Solicitor) Messrs Lupton Fawcett LLP Solicitors Yorkshire House East Parade Greek Street Leeds LS1 5BD
For the Second Respondent	No appearance or representation by or on behalf of the Second Respondent


 


SUMMARY

PRACTICE AND PROCEDURE: Time for appealing

Appeal from Registrar allowed after evidence heard as to the extent of the Appellant's disability due to severe dyslexia.


 


HIS HONOUR JUDGE HAND QC

1. Mr Mohammed Hakim has brought proceedings against the Italia Conti Academy of Theatre Arts and Ms Karen Stephenson complaining of unfair dismissal and unlawful discrimination on grounds of race, sex, disability, age and religion and belief and also including harassment and bullying. The proceedings arise out of the period that Mr Hakim spent with the Italia Conti Drama School in his first year as a student. Having commenced his proceedings in the Employment Tribunal at London (South), he was met with applications (or it may be that the Tribunal raised issues of its own motion) that the matter be dealt with on a pre-hearing review to determine, firstly, whether he was employed by the Italia Conti Academy of Theatre Arts and secondly, whether that Respondent had provided him with vocational training.
2. On 8 July 2008 an Employment Judge, Judge Hall-Smith, heard these issues by way of Pre-Hearing Review, and by a Reserved Judgment, sent to the parties on 2 October 2008, he held that Mr Hakim was not an employee of the Italia Conti Academy of Theatre Arts nor did that Respondent provide vocational training and accordingly the Employment Tribunal had no jurisdiction to hear his claims, which were therefore struck out.
3. The time for appealing against a judgment of an Employment Tribunal in this form, that is to say a written Reserved Judgment, is, by Rule 3(3)(a)(i)(bb) of the Employment Appeal Tribunal Rules, 42 days from the date on which the written Reasons were sent to the parties. On that timescale, time expired in this case on 13 November 2008. What happened was Mr Hakim submitted a handwritten Notice of Appeal on that date but he did not submit a copy of the claim form (the ET1) or the response forms (the ET3s) until the following day. His Notice of Appeal was deemed not have been properly instituted until 14 November 2008 and therefore his appeal was one day beyond the 42 day period.
4. Mr Hakim was informed as to that by correspondence from the Employment Appeal Tribunal. A standard letter dated 14 November 2008 indicating that there was a question as to whether or not an appeal had been instituted in accordance with Rule 3 of the Employment Appeal Tribunal Rules (amended) 2004 was sent to him. On 18 November 2008 he was written to by this Tribunal that the appeal was being ruled out of time and advised that if he wished to apply to extend the time then he must do so within 14 days. On 1 December 2008 he wrote the letter at page 16, which, in effect, is an application to extend time. He followed that by emails of 2 January 2009 and 7 January 2009 to which were attached what he described as submissions for the application for extension of time, one of which is plainly wrongly dated 2 October 2008; that is the one appended to the email of 2 January; the other submission is correctly dated 2 January but appended to the email of 7 January. The submissions, whilst not complete duplicates are essentially repetitive.
5. The Registrar of the Tribunal heard this matter on 21 January 2009 and by an order sent to Mr Hakim on or shortly after 21 January the Registrar refused to extend time. She attached her reasons; these are to be found at pages 40 and 41. Although I recognise that this appeal to me is a rehearing, it is necessary for me to summarise her reasons, not simply out of courtesy to her but also because I have reached a different conclusion.
6. Her reasons are prefaced by a brief recitation of the facts and the contentions, namely that the appeal was lodged one day out time, that Mr Hakim had claimed that whilst still in time he had telephoned the Tribunal to ask for further time to prepare an appeal because he was dyslexic and that he had misunderstood what he was told as indicating that he had to wait until the end of the 42 day period before he could request an extension. The Registrar thought that it was difficult to see why the latter was a relevant consideration because he had been able to submit his appeal albeit not in proper form within 42 days. She thought that the information that he says had been given to him by the staff of this Tribunal was not credible, it being her understanding that the staff would advise him to submit an appeal as soon as possible. Accordingly she came to the conclusion that no exceptional reason had been shown as to why an appeal could not have been presented within the time limit laid down in paragraph 3 of the Rules.
7. Mr Hakim has appealed against that decision by the Registrar. I have had the benefit of a skeleton argument put in by him in response to that lodged on behalf of the First Respondent by Kennedys, the solicitors to the First Respondent, received by this Tribunal on 12 May 2009. Mr Wright of that firm has appeared on behalf of the First Respondent. The Second Respondent, through correspondence sent to this Tribunal, has indicated that it did not wish to attend because its position is identical to that of the First Respondent. Mr Wright is therefore a kind of caretaker of the Second Respondent's position, although he does not represent them. It is clear however that the outcome so far as the First Respondent is concerned must be identical in the case of the Second Respondent.
8. In approaching this appeal I have had the benefit of considering the judgment of my colleague, HHJ McMullen QC, in a series of conjoined cases reported as Muschett v Hounslow Borough Council & Others [2009] ICR 424. The learned judge summarises the legislation at paragraph 3 on page 426 of the judgment. He makes reference to the Practice Direction and to a booklet called "The Judgment". I have had the advantage of looking at a copy of that booklet. I have also taken the opportunity to consider the contents of the Employment Appeal Tribunal's website. At paragraph 4 on page 407 the learned judge refers to a number of authorities, some of which, I ought to add, were referred to by the Registrar in this case and then at paragraph 5 he sets out what he describes as the principles. These he has collected both from the arguments presented to him in Muschett and from the authorities and he sets them out under nine separate roman numerals. I have referred myself to them all and I hope that the careful way in which the learned judge has set them out will not in any way be diminished by me confining myself simply to the three questions posed by Mummery LJ in the case of United Arab Emirates v Abdelghafar [1995] ICR 65, which Judge McMullen emphasises in his point (vii) as being core matters. These are:

"(a) What is the explanation for the delay?

(b) Does it provide a good excuse for the default?

(c) Are there circumstances which justify the Tribunal taking the exceptional step"

The quotation ends at that point but, although I doubt it is necessary, for the sake of absolute clarity, I will add 'of extending time' to the end of (c).

9. At paragraph 6 of the judgment on page 428 the learned judge outlines the practice, deals with the position before the Registrar and just below side letter D says :

"An appeal lies under rule 21 from a decision of the Registrar not to register an appeal. In effect, it is a fresh hearing before a judge."

I agree with that analysis and that is the approach that I have adopted.

10. The learned judge goes on to say:

"Sometimes there is live evidence, for instance when a party wants to explain facts and it is only fair that he or she do so on oath and that the other side is offered the opportunity to cross-examine."

I have adopted that course in this case and invited Mr Mohammed Hakim to give evidence. He has been cross-examined by Mr Wright.

11. The evidence that he has given is this. He is dyslexic. That was something that was clear to the Registrar; one of the attachments to his email of 2 January was a letter from his doctor addressed "To whom it may concern" and dated 29 December 2008. The letter reads as follows:

"I am writing on behalf of my patient Mr Mohammed Hakim as he feels that he is having difficulty getting across to people in authority the problems that he has due to his dyslexia which he feels, quite rightly, makes it more difficult for him to process the amount of written material he is having to read for his various court cases. He has seen an educational psychologist who has confirmed the diagnosis of dyslexia. When he is having written exams he is allowed extra time to complete the exam."

There is then a further paragraph which I will not read but which indicates that Mr Hakim has had personal and family problems, problems with family illness and that he is very distressed by the way that he has been treated. He also has had significant physical illnesses.

12. Mr Hakim has told me, and I accept, that in a sense that report perhaps understates the difficulties that he has. He is, I accept, severely dyslexic. He relies upon a computer which has been specially programmed, by a charity dealing with dyslexics, so as to facilitate his ability to read documents. Part of that process is to turn passages into specific fonts which he finds easy to understand. The computer software also enables him to block pieces of text in different colours. That is one of the strategies that he has developed for coping with his dyslexia; another is to make plans. Latterly, although not at the time of this case, he has been allocated a social worker who can help him fill out forms; something which he feels is a necessity.
13. Mr Hakim also has difficulty in focussing. That much would be apparent to anyone who has been present during the course of what is now, at 3.35 pm, quite a long hearing to dispose of a simple issue. He told me, and I accept, that he has a tendency to start upon a task and then to return to it time and time again because he is not satisfied so far with the way that he has put it down on paper or, rather, upon the screen. He also, whilst quite aware that time may be passing, is somebody who would perhaps from time to time forget certain important matters; he could read something and if he has not turned it into a particular form that fits within his scheme of prioritising and remembering things then he may well forget it again.
14. His memory as to what happened in the period after the decision was sent out by the Employment Tribunal is vague. I do not think that Mr Hakim has been deliberately untruthful or evasive. I think that he simply cannot remember some things and I think that he confuses some things with other things. What I have not said so far in this judgment is that part of the reason for his case being struck out by the Employment Tribunal is a controversy as to whether one or another part of the relevant statutes relating to discrimination apply to his case. Consequently he has parallel proceedings in the County Court on the alternative footing that if his complaints are not within the jurisdiction of the Employment Tribunal then they are within the jurisdiction of the County Court because if they are not covered by one section of the relevant Act then they must be covered by the other. He has, I think, a lot to cope with for somebody with his disability. He has two pieces of litigation on-going. He also feels that he has been badly treated and has a number of complaints relative to various persons in authority, who have dealt with his cases at one time or another.
15. As I have already indicated he has considerable difficulty in focussing. He had to be brought back throughout the course of the hearing to the issue at hand, which is the explanation for him not having put in his Notice of Appeal within 42 days.
16. Doing the best that he could to reconstruct events it seems likely, and I find as a fact, that he did receive the reserved judgment probably in the week following 2 October 2008. The 2nd day of October 2008 was a Thursday; he thinks it is possible that the communication from the Employment Tribunal did not arrive until Monday 6 October. To my mind it is probable that it came then or shortly after that time, if, in fact, it had not come before.
17. In his various submissions made about this matter Mr Hakim has pointed out that he therefore has not had 42 days. In that respect, he is, of course, in no different a position to any other litigant; the time starts to run when the decision is entered in the Register, although the decision will not arrive by post until a day, or two, or three, afterwards. If it is close to the weekend, as was the case here, it may not arrive until the following week. But that is not of course a relevant consideration, all appellants or potential appellants are faced with that difficulty. Even taking that into consideration, as is made clear in the authorities, the time limit is generous.
18. Mr Hakim told me that he thought that the pamphlet "The Judgment" had probably come with the reserved decision. At some point he has obtained the Notice of Appeal form EAT1. Whether that came from the Employment Tribunal, as he was disposed to think at one stage, or he has got it from this Tribunal I know not. It is possible that he has downloaded it from the Employment Appeal Tribunal website.
19. The pamphlet entitled "The Judgment" has a number of pertinent passages in it. At page 6 a passage starts "How can I appeal against the Tribunal's judgment? At page 7 the address of this Tribunal is given, and also at page 7 there is information about asking questions and about getting the appeal forms and, in that context, reference is made to the Employment Appeal Tribunal website. Having looked at the website, it is clear that provision is made on the website for electronic filing of a Notice of Appeal via the email address of this Tribunal. Both on the website and at page 7 of the pamphlet, "The Judgment", are clear statements as to the time limits, as to their strictness and as to how they are to be worked out. There is also this passage on page 7 about what is to be sent to this Tribunal:

"You must send a copy of any claim and response, the Tribunal judgment and the written Reasons for the judgment with your Notice of Appeal or an explanation as to why none is included."

20. Mr Hakim accepts that he had this pamphlet and he very frankly accepted that he probably read all that. Moreover he said, when I pointed out these facts to him, this was all very clear, but what I must understand is that having read it it would not necessarily in that form and in that font be as clear to him in his home as it is in the Employment Appeal Tribunal whilst giving evidence with me asking him questions and pointing out various passages. I accept that.
21. Mr Hakim has said in the written documents and again in this Tribunal that he believes that he had some telephone conversations with this Tribunal before 13 November 2008. He also thinks that he was written to by this Tribunal. He cannot remember the contents of that letter, which he believes is at his home and could be found. In my judgment that is a figment of his imagination. I say that without doubting the genuineness of his belief but I say it because, firstly, there is no record of any such correspondence on the file of this Tribunal; secondly, I can see no reason why anybody would be corresponding with him. Mr Hakim thought that he might have sent an email. If he had sent an email and this Tribunal had replied one might expect to find it on the file. But this Tribunal would keep not open a file and would do no more than respond courteously to enquiries unless and until a Notice of Appeal was lodged. I do not doubt that there have been telephone conversations. In the Notice of Appeal itself at page 11 of the bundle Mr Hakim says the following:

"I have notified already that I am seeking help from Bar Pro Bono Unit to help me with my appeal to employment tribunal. As and when I receive my further grounds of appeal I will send them in."

At page 12 he also said:

"Further grounds will follow (once I've had a chance to get the help from Bar Pro Bono Unit) as and when."

22. I will return to the Notice of Appeal in due course, but at this point it seems to me those passages provide some form of corroboration that Mr Hakim had already had contact with this Tribunal before drafting his Notice of Appeal. To my mind it is an indication that he has had a conversation about his needing to seek help from a third party and that is entirely consistent with his having asked about an extension of time. I think there was a conversation on the telephone in which he did ask about an extension of time on the basis that he was seeking help from the Bar Pro Bono Unit and that he could not guarantee that such help would necessarily be forthcoming in the immediate future. Exactly when that conversation was it is impossible to say. Mr Hakim told me that there had been more than one conversation.
23. Plainly however he did have an urgent conversation shortly before he submitted the Notice of Appeal. He told me, and I accept, that it was in that week, possibly the day before, that is to say possibly on 12 November, possibly the day before that, when he rang the Employment Appeal Tribunal to discuss some aspect of his appeal. It may be that is the time when he discussed the Bar Pro Bono Unit; may be not; it may have been a separate occasion. Be that as it may, Mr Hakim in the course of his discussions realised that the time limit for appealing was about to expire. Whether he had lost sight of that or not is impossible to say but at all events on 12 November, or possibly the day before, he realised that he had very little time. Consequently, he hand wrote a Notice of Appeal abandoning the more elaborate version that had been on his computer and he caught a train in the afternoon of 13 November realising that he must get here in time to lodge the Notice of Appeal that day or he would be beyond the time limit.
24. What happened when he arrived in central London was he could not find the Employment Appeal Tribunal. The Employment Appeal Tribunal is at Audit House, 58 Victoria Embankment. At first sight it seems ludicrous that it is difficult to find. However, for instance, numbers 58 and 60 are not contiguous and the layout of this part of the Embankment is difficult for the stranger to follow. I accept that he may well have got lost and that it is not unreasonable for him to have had to spend some time finding the building. As it was he got here at 16.28 or rather he had completed the process of lodging the form at 16.28. Whilst lodging the form it was pointed out to him that he had not brought the ET1 and ET3 forms. This was something that he told me that he appreciated on the train on the way here. It was by then too late to go back and get them. How he appreciated that I know not; perhaps he was looking at the form, perhaps he was looking at the pamphlet "The Judgment". What he did was write on the form the words "will follow" opposite paragraph 5(b) and 5(c) and add at page 12 of the bundle at the end of the addendum to the form these words:

"PS. I will also send an ET3, ET1 with further grounds as and when I get the help from Bar Pro Bono Unit. However, I 've enclosed the Reserved Judgment dated 2/10/2008."

He tells me, and I accept, that was done whilst he was lodging the form. He went away having been told that without the ET1 and the ET3 forms the appeal might well not be properly instituted. He was not told that the lodgement of the Notice of Appeal was 28 minutes late. He tells me that the following day he had another telephone conversation with the Employment Appeal Tribunal and realised for the first time, despite the fact that it is clearly stated on the website, which he may or may not have accessed or may or may not have seen, that one can lodge electronically. He appreciated that for the first time as the result of the telephone conversation. He therefore set about trying to find the ET1 and ET3 forms. The ET1 was in electronic form on his computer and could have been lodged electronically had he only thought of that process or been informed as to it or had read the materials properly. The ET3 forms appear to have been in hard copy and he says he scanned them. I have seen the copies that are attached to the Notice of Appeal on this Tribunal's file. They are in a slightly different form, certainly so far as the ET1 is concerned, to those that appear in the bundle and it is quite clear that, at least, the ET3 forms have been scanned in and turned into PDF files. So I have no reason not to accept Mr Hakim's evidence on this point.

25. Those are the facts of the case.
26. Mr Hakim was one day out of time. What is the explanation for that default? The explanation is that for a long period of the time limit for appealing he was afflicted by dyslexia, not producing, as he knew at some point that he should have produced, a Notice of Appeal, that he had lost sight of the urgency of the matter, that when the urgency of the matter became apparent as a result of the latest telephone conversation with the Employment Appeal Tribunal he endeavoured to get the Notice of Appeal here on time. In fact he was 28 minutes late. Others have been shut out in circumstances where they have been less late than that but that was not the reaction of the office staff of this Tribunal here. His Notice of Appeal does not set out in any detail the grounds of appeal, it simply says that he thinks the Tribunal may be wrong in law; but the Notice of Appeal has not been shut out on that basis either.
27. It has been shut out because the ET1 and ET3 were not attached. The rules and Practice Direction are clear; the appeal must be lodged in proper form. What is the explanation for Mr Hakim arriving at Audit House without the ET1 and ET3 forms? His explanation is that with all the difficulties of organisation that he has, having left it late, having realised the urgency of the situation, he simply did not, consistent with his disabilities, muster all the material and indeed calmly reflect on whether he had all the material.
28. Is his dyslexia an excuse for all this? Not without a great deal of hesitation I have come to the conclusion that it is. Somebody without severe dyslexia would not be able to rely upon a lack of focus or a lack of organisation or a lack of assistance. In my judgment, however, what distinguishes this case from other cases, and possibly from cases of mild dyslexia, is that Mr Hakim has to martial his material in a particular way, he has to organise the fonts on his computer and he has to highlight things. He can, in an absolute emergency, do what he did in this case and handwrite something with great speed but in that process when he is not following his normal strategies he is liable to overlook essential steps. A person without these disabilities or even a mild dyslexic would not do that; the person who is simply unfocussed and disorganised cannot be excused. But I take the view that his severe dyslexia, coupled with him being under stress, which I have not overlooked, he had in a sense imposed upon himself by the way that he had approached the matter, prevented him from bringing the ET1 and ET3 forms down to Audit House with him. That was corrected a day later. Had it been done a day earlier the appeal would have been recognised as properly instituted and would have been accepted as being in time.
29. In the circumstances, in my judgment, it is right to take the exceptional step of extending time and I will extend the time limited for lodging the appeal until the following day - 14 November 2008 – that will mean that the appeal is properly lodged and ought to be accepted by this Tribunal. It is however not well particularised and as well as extending time I will order that proper grounds of appeal be submitted to this Tribunal and served on both Respondents within 21 days of today's date. If that is not done then an application can be made to strike the appeal out on the basis that full grounds have not been properly provided.