Mr Greg O'cathail v Transport for London
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Rimer,Lord Justice Pitchford |
| Judgment Date | 20 July 2012 |
| Neutral Citation | [2012] EWCA Civ 1004 |
| Date | 20 July 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2011/0432 |
[2012] EWCA Civ 1004
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON MRS JUSTICE SLADE
UKEAT/0247/11/MAA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Rimer
and
Lord Justice Pitchford
Case No: A2/2011/0432
The Appellant appeared in person
MS LUCINDA HARRIS (instructed by Eversheds LLP) for the Respondent
Hearing date: 24 th May 2012
Introduction
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.
Background
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 EAT judgment
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.
Appellant's submissions
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...
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