O'Cathail v Transport for London

This appeal is about the power of the Employment Appeal Tribunal (EAT) to extend time for appealing from the Employment Tribunal (ET). It is sparingly exercised, as is the jurisdiction of this court to overrule a procedural decision reached by a court or tribunal in the exercise of a statutory discretion. Applications for an extension of time are most often made by unrepresented applicants. Over the years professional representation in the ETs has diminished. That trend will continue. There will be more missed deadlines.

By an order dated 2 February 2011 Mrs Justice Slade, sitting in the EAT, dismissed an appeal by Mr Greg O’Cathail (the appellant) from the EAT Registrar’s order dated 12 April 2010 refusing a one day extension for lodging required documents in support of his appeal from the ET.

Elias LJ refused the paper application for permission to appeal. He described this as a “hard case.” In his decision dated 22 July 2011 he wrote that he could see no error of law in the EAT’s judgment. On the appellant’s renewed oral application on 20 January 2012 permission was granted “after some considerable hesitation” and without the benefit of citation of the authorities. Jackson LJ considered that it was arguable that the circumstances of the case were so exceptional that the EAT erred in not extending the time by one day. He explained that the notice of appeal to the EAT had been lodged in time; that the additional documents required by the EAT were filed only one day late; that it was arguable that the appellant’s disability prevented him from working on his notice of appeal until a significant part of the period for appealing had expired; and that the delay of one day in filing the additional documents was referable to and arose out of the appellant’s disability.

Despite his disability, the appellant has prepared for and has conducted this appeal in person.

The appellant became a permanent employee of Transport for London, the respondent, on 1 June 2007, after working for them temporarily from December 2005.

On 4 January 2008 he went on sick leave which proved to be long term. He did not return to work prior to his dismissal on 23 December 2010. Since then he has presented seven claims in the ET against Transport for London. This appeal relates to his first claim, which was for disability discrimination, in failing to make reasonable adjustments, and for harassment. The ET hearing took place in November 2009. The ET upheld the discrimination claim and awarded him £3,000 compensation. It dismissed the harassment claim.

The ET notified its decision to the parties on 16 December 2009. The appellant had 42 days in which to appeal to the EAT on a question of law. The time for appealing expired on 27 January 2010. He lodged the notice of appeal form in person at the EAT at 1540 hours on 26 January 2010, which he mistakenly believed was the last day for lodging his appeal. He failed to lodge at the same time other documents (the judgment and reasons of the ET) required by the EAT for the institution of an appeal. The stress of those events caused the appellant to have a panic attack. In consequence he was ill on 27 January. He posted, by special delivery from the local Post Office, the written reasons on 27 January 2010. He scanned the missing documents and emailed the judgment of the ET to the EAT on 28 January 2010.

The EAT rejected the appeal as out-of-time. The EAT Registrar refused his application for an extension of one day. She referred to the EAT Practice Direction and stated that there was no exceptional reason why the appeal could not have been presented within the time limit laid down by Rule 3 of the EAT Rules. The appellant then appealed to the judge.

The appellant relied on uncontradicted medical evidence that he suffers from depression, anxiety and panic attacks exacerbated by court hearings.

The appellant and his wife gave oral evidence at the EAT appeal hearing. He was cross examined. The judge made findings that he was very depressed after the ET decision; that he knew that there was a deadline for lodging the Notice of Appeal, which he thought was 26 January 2010; and that his disability (depression, anxiety, and panic attacks with associated lack of concentration, memory loss and forgetfulness) inhibited him from working on his grounds of appeal until the end of December 2009. That meant that he lost the use of two of the six weeks time limit for appealing to the EAT. The appellant worked hard on his grounds of appeal throughout the remainder of the six week period expiring on 27 January 2010.

The judge said that there was no evidence to explain why the appellant failed to lodge his notice of appeal before what he believed was the last day for doing so. The appellant had ample opportunity and ability to lodge the notice of appeal before the very last moment. The judge found that the reason why the appellant did not bring the documents necessary to comply with the EAT rules on 26 January related to his disability. His disability was a contributory factor in his inability to travel to the EAT on 27 January 2010 to lodge the additional documents. However, the judge concluded that his disability was not the reason for his failure to lodge the appeal in time. The reason why he failed to do so was that he had left it to the very last minute to lodge the required documents. He ran the risk that, if something went wrong, he might not have time to put it right.

In addition to the grounds of appeal the appellant submitted a 33 page skeleton argument (including an addendum) and a further 25 page skeleton argument for reading out at the hearing. The papers also incuded an 81 page Notice of Appeal from the ET to the EAT. His oral submissions referred also to other documents used by him in the EAT and on his application for permission to appeal. He quoted from the judgment given by Jackson LJ summarising his arguments on that application.

I will concentrate on the appellant’s core submissions. This summary does not mean that the rest of the appellant’s submissions have been ignored. The court has to reach a decision on whether the judgment under appeal was wrong or procedurally unfair. For that purpose I will pick out from the detail the salient strands of the argument that this is an exceptional case, which justifies a short extension of time.

In the first place, the “overriding factor” in the appellant’s case is the exceptional personal circumstance that he has been diagnosed as disabled within the meaning of the Disability Discrimination Act 1995 and the Equality Act 2010. He also claims protection from discrimination under the human rights legislation, in particular Article 13 of the European Convention. As a disabled person he seeks access to the service provided by the EAT, which, as a public authority, is under a duty to make reasonable adjustments to its Practice Statement and Rules, as they apply to disabled persons, in order to avoid disability discrimination and breach of his human rights. The EAT Rules and Practice Direction contained no provisions for a person suffering from a disability.

According to his medical evidence the appellant’s disabled condition prevented him from getting down to work on drafting his notice of appeal for the first part of the six week period for appealing. He was certified medically unfit for work throughout the 42 day period. He was taking powerful medication with serious side-effects. He described the way in which the side effects have taken their toll on his fragile and vulnerable mental state. He said that he had difficulties due to his disability in getting to the hearing of this appeal, having had no sleep the night before.

The appellant says that no proper notice was taken of his disability or of applicable legislation. The medical evidence was not contradicted by the respondent. His inability to start work on his notice of appeal for some time was due to the severe symptoms and effects of his disabled condition. He sought to make every possible effort to produce his appeal within the required time. Having got off to a bad start, he had to work extremely hard for the rest of the appeal period under very difficult personal circumstances. He said that he required every minute of every day of the 42 days, but was plagued by confusion, forgetfulness, memory loss and other symptons due to his disabilities. As for the criticism that he had left lodging the documents till the end of the 42 day period, he said that he had a right to use all of the period allowed for appealing and not doing so would prejudice him.

Secondly, his personal circumstances on the crucial dates of 26 and 27 January 2010 were exceptionally difficult. He was unforeseeably very unwell, having suffered a panic attack when he realised that he had forgotten to take all the required documents to the EAT in person on 26 January 2010. He was not well enough to travel to the EAT with the necessary documents on 27 January.

Thirdly, in the interests of what is fair, just and equitable in all the circumstances, the EAT should have weighed the greater prejudice to him, if an extension is refused, against the lesser prejudice to the respondent, if an extension is granted. He also says that he comes off worse when a comparison is made between his position and that of a non-disabled person.

The appellant cited cases in which time had been extended, such as Hakim v Italia Conti Academy of Theatre Arts [2009] UKEATPA/1444/08/DA (disability factor); Hine v. Talbot & Ors [2011] UKEATPA/1783/10/SM; Franks v. Board of Governors for Churchmead C of E Voluntary Assisted School [2011] UKEATPA/0708/10/RN (disability factor); and Hancocks v. Cambian Education Services Ltd [2011] UKEATPA/0824/10/CEA.

The appellant contended that the authorities, when properly applied to cases of documented disability like his, supported his case: his disability explained why the appeal was out of time; his disability amounted to a good excuse and was supported by medical evidence; and, as shown in some of the cases, the circumstances of disability can justify taking the exceptional step of granting a short extension of time to enable an appeal to be brought.

The Court of Appeal has no power to set aside an order of the EAT made in the exercise of its discretion, unless it is shown to be wrong or procedurally irregular e.g. contrary to legal principle; or the result of ignoring relevant material; or under the influence of irrelevant material; or, for some other reason, a plainly flawed decision.

The EAT’s general approach to applications to extend the generous time limit allowed for appealing from the ET is well settled on a principled basis, which has been approved by the Court of Appeal: see, for example, United Arab Emirates v. Abdelghafar [1995] ICR 65; Aziz v. Bethnal Green City Challenge Company [2000] IRLR 111; Kanapathiar v. London Borough of Harrow [2003] IRLR 571; Jurkowska v Hlmad Ltd [2008] IRLR 430 (a case in which an extension of time granted by the EAT was upheld on appeal to this court); and Muschett v. Hounslow London Borough Council [2009] ICR 424.

Some critics have said that the EAT’s approach is “hard hearted”: see Ward LJ in Woods v. Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180 at [27]-[30]. It probably seems so to failed applicants. I do not agree with that view. The EAT must be even-handed: it must consider judicially the conflicting positions of both parties and the public interest in good judicial administration, not just the plight and pleas of an applicant seeking an indulgence from the EAT. I have not seen any judicial comment that the approved approach is unfair or unjust. It is binding on the EAT and on this court, unless and until the rules are changed, or a higher court substitutes a different judicial regime for reviewing the procedural discretions of the EAT.

The EAT concluded that, in all the circumstances, an extension was not justified. In arriving at that conclusion all of the points made by the appellant were carefully considered and properly taken into account in the excellent judgment of Mrs Justice Slade.

Up to a point I would agree, as the judge did, with some of the points made by the appellant. First, he lodged his notice of appeal form in time. However, that, on its own, was not enough to institute the appeal: he also had to comply with the EAT rules requiring the specific additional documents to be lodged within the same time limit. That requirement is as strictly enforced as the obligation to lodge a notice of appeal form in time: see, for example, Kanapathiar v. London Borough of Harrow [2003] IRLR 571 and Woods v. Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180.

Secondly, the required documents were lodged only one day out of time. The length of the delay is a material factor, but the crucial issue is whether there was a good excuse for that delay, rather than whether the delay was long or short. In this case the appellant did not get all the documents in on time, because he left lodging his appeal till the end of the period for appealing; and that obviously carries with it the risk that things can go wrong without having enough time left to correct them.

Thirdly, the appellant undoubtedly suffers from a recognised disability. Its effects are relevant factors in deciding whether he had a good excuse for not complying with the time limit and whether there were exceptional circumstances justifying an extension of time. The judge took those factors into account when she accepted that his disability was the reason why he was unable to start work on his appeal until the end of December 2009. That left him four weeks in which to prepare for his appeal. It was found as a fact by the EAT that he was not disabled from lodging his appeal within the relevant period. He was able to produce very long and complex grounds of appeal and to submit them in time. His disability does not explain or excuse his failure to attach the required documentation. The appellant has demonstrated by his own conduct that his disability does not prevent him from meeting time limits.

Finally, I agree with the appellant that his disability was a contributory factor in his inability to travel to the EAT on the 27 January 2010, but the EAT concluded that his delay in lodging the additional documents was not referable to and did not arise out of his disability. In particular, his disability did not mean that he was unable to lodge all the documents before 27 January 2010 in advance of the deadline. I would add that the notice of appeal did not have to be as long and detailed as the appellant made it. I note also that the required documents did not have to be lodged in person. Other methods could have been used and were in fact used, but too late, because he had left taking the necessary steps till the very end of the six weeks.

I would dismiss the appeal. The appellant has advanced every possible argument, but he has not demonstrated that the EAT’s refusal to extend time was wrong, or that it erred in principle, or that it was plainly wrong to refuse to extend time.

The final point is that, in addition to arguable points on the exercise of discretion, the appellant regrettably made serious allegations without any basis in law or fact. He said that the judge had made up her mind before hearing the case. He felt that the decision was harsh and that he was being punished. His complaints of bias, said to be evidenced by a pre-determined judicial decision to dismiss his appeal, of procedural unfairness and irregularity, of perversity and of humiliating and degrading treatment were unsupported by evidence of any kind. The allegations should not have been made.

I can understand that the appellant feels upset and aggrieved at the refusal of an extension of time for his appeal. I can also appreciate the stresses on a litigant in person, especially a vulnerable person suffering from a disability, in preparing and presenting legal arguments on paper and in person. But those circumstances can never justify baseless accusations of misconduct against the ET, or against the EAT and its judges, or against the Tribunal Service.

I agree.

I also agree.