Appeal No.	EAT/1468/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 April 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
(AS IN CHAMBERS)

MRS E M MENSAH	APPELLANT

1.	ROYAL BERKS & BATTLE HOSPITAL NHS TRUST
2.	WEST MIDDLESEX UNIVERSITY HOSPITAL NHS TRUST
3.	MS S McDONALD
4.	THAMES VALLEY UNIVERSITY	RESPONDENT

Transcript of Proceedings

FULL HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON.	
For the 1st Respondent

For the 2nd, 3rd and 4th Respondents	MR J COPPEL 
(of Counsel)
Instructed by:
Ms J Hogarth
Legal Adviser
Engineering Employers Federation
Broadway House
Tothill Street
London SW1H 9NQ

MR A LESLIE
Solicitor
Messrs Le Brasseur J Tickle Solicitors
Drury House
34-43 Russell Street

MR JUSTICE LINDSAY (PRESIDENT)

1.	This is an appeal by Mrs E Mensah in the matter Mensah v. 1st Respondent, Royal Berkshire & Battle Hospital NHS Trust, 2nd, West Middlesex University Hospital NHS Trust, 3rd, Miss S McDonald and 4th, Thames Valley University.  Mrs Mensah appears today in person and Mr Coppel appears for the 1st Respondent and Mr Leslie for the remaining Respondents.  On 5 May of last year Mrs Mensah launched an IT1 form of complaint claiming unfair dismissal, racial discrimination and sex discrimination and breach of contract.  The last date of employment by any Respondent as claimed in that IT1 was 29 January 1996 and in one respect the unfair dismissal claim related to an unfair dismissal alleged to have occurred as early as 1978.  So one can see that, on any footing, what will be looked into or that which is sought to be the subject matter of the claim is a very stale event.  There was a hearing on 8 July of last year at London North before Miss Lewzey, as the Chairman sitting alone, and on 3rd August, the decision was sent to the parties.  It was that the applicant’s originating application was struck out under rule 13(2) (d) of the Rules of procedure on the ground that it was frivolous and vexatious.  I will not take up time reading very much of the decision but some passages need to be mentioned.  Paragraph 18 says:
18. “In relation to the complaint against the First Respondent, the Chairman is satisfied with the complaint of unfair dismissal has already been litigated in the Employment Tribunal and dismissed and the appeal to the Employment Appeals Tribunal and the Court of Appeal has also been dismissed.  Mrs Mensah was last employed by the First Respondent on 3 February 1978, some 21 years ago and the application for a job application in May 1996 is over three years ago.  The Chairman is satisfied that the complaint against the First Respondent has already been litigated and in any event is out of time.  It is the decision of the Chairman to strike out Mrs Mensah’s complaint against the First Respondent under Rule 13(2) (d) on the grounds that it is frivolous and vexatious and has no prospect of success.”  
The Chairman then went on in paragraph 19: 
19. “The Chairman considered the application made on behalf of the Second, Third and Fourth Respondent.  The Chairman was satisfied that the latest date of the events the subject of the claim was 29 January 1996 which is more than 3 ½ years ago and that all the issues in relation to the employment for the period from November 1994 to 29 January 1996 have been litigated already in case number 27109/96.
And a little later: 
“The doctrine of res judicata provides a defence to the entire claim brought by Mrs Mensah.”
2.	That was sent to the parties, as I have mentioned, on 3 August 1999 and hence time for the 42 days permitted for a Notice of Appeal was set running from 3 August.  On 3 August by a letter Mrs Mensah asked for a review of the decision and again on 14 August Mrs Mensah asked for a review.  It might be also that on 17 August she did so too; these letters are referred although not actually seen in my papers.  But it is quite plain that within the 42-day period Mrs Mensah was able to compose not just once but more than once an application for a review.  On 15 September time for appealing the decision of 3 August expired.  On 15 September a review was refused on the ground that it had no reasonable prospect of success, and it is in paragraph 2 of that decision as to review that there is reference to the letters to which I have referred because one there sees that the applicant Mrs Mensah had by a letter dated 14 August followed by a further letter of 17 August applied for a review.  On 4 October, 18 days late, the Notice of Appeal was received in this matter and it purported to appeal against the decisions of 3 August and 15 September, namely the substantive decision and the review decision.  

3	On 4 October also there was an application for an extension of time in which to the lodge of the Notice of Appeal on Mrs Mensah’s behalf.  To use the expression she then used, she had been “beside herself with pressure imposed by the Tribunal, the landlord she has engaged with and also the benefit agency.”  She had been taken ill and the effect of the illness, she said, had continued for some time.  She lodged, with the application for an extension of time, certain correspondences, hoping that they would make out, presumably, the nature of the pressure that she claimed she had been under.  But a number of the letters related to periods before the decision had been sent to the parties on 3 August and so they can barely assist.  Another letter was after the period of 42 days had expired.  Indeed, although I am not entirely sure of this, it seems that perhaps only one of the letters related to a date within the 42-day period.  At all events, that was the nature of the application for extension of time.  On 26 October time expired for the entering of any Notice of Appeal in relation to the review decision but, of course, the Notice of Appeal of 4 October had purported to cover that as well.  

4	On 9 December the Employment Appeal Tribunal indicated, as is its usual practice, that it would write to the other parties to find out what their views were on the granting or withholding of Extension of Time.  The answers came back that the other parties opposed any extension of time.  On 4 January the Employment Appeal Tribunal sent on to the Appellant the indications that had been received from the Respondents that they wished to resist claim for an Extension of Time.  On 19 January Mrs Mensah purported to answer the Respondents objections in a long letter and again she claimed that she had been under psychological stress and that time had been taken up seeking legal advice.  She sent a note dated 1 September 1999 from a Medical Practices Centre, indicating that she was to be given an appointment with a Psychiatric Clinic on 18 October 1999.  

5	On 24 January Mrs Mensah made a new type of complaint, namely that the decision was that the Notice of Appeal was in any event not out of time.  She accompanied that letter with a document.  It was a single Employment Appeal Tribunal printed form indicating that, pursuant to her request, a copy was being sent to her.  It appears to be dated 13 August 1999.  But it does not indicate that the thing of which a copy was sent was the judgment of 3 August, nor does it suggest that the original had not been sent out on 3 August and so it seems to me it would have been a quite pointless or hopeless case to assert that the decision had not been sent out until 13 August. In any event, although that point was so touched on, at the 24 January, Mrs Mensah has not renewed the point today.  Even if she had, it would seem to me to have been a quite pointless or hopeless case.  

6	On 26 January the Registrar made an order the substantial part of which is that, upon due consideration of the judgment given in the well known Abdelghafar case (the reference to which was given) and of the facts that the Appellant is an experienced litigant and was fully aware of the time allowed for appeals and that there had 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 was ordered that the application for an extension of time in which to present the Notice of Appeal was refused.  On 27 January Mrs Mensah appealed against that refusal, again relying on her alleged psychological and emotional state.  She asserts also that the basic decision complained of is in breach of the European Community law and of Human Rights Law and a breach of the article entitling her to a fair hearing.  She puts in a skeleton argument, too, which invites me to give consideration to the relative prejudice suffered by her on the one hand and the Respondent on the other.  

7	She accepts that she was aware of the 42-day limit but was, she says, suffering from mental fatigue and from stress.  She very makes the point that she was not misadvised.  Well, against that background, how is one to proceed, given the Employment Appeal Tribunal’s generally relatively strict approach in requiring a timely compliance with the rule as to the 42day limit.  The Abdelghafar case, which is well known to Mrs Mensah- it has been cited to her in earlier decisions- shows that occasionally the indulgence of an extension can be granted but a case needs to be made out for that and it might be added that the recent case in the Court of Appeal Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 11 serves only to emphasis that the Abdelghafar test is the appropriate test to be deployed in the Employment Appeal Tribunal, even though it may represent a more strict view than the Court of Appeal itself adopts in relation to its own cases.  Here Mrs Mensah knew of the time limit.  She is, it has to be noted, an experienced litigant before the Tribunal below and before the Employment Appeal Tribunal.  She does not rely on having been given bad advice.  She does rely on psychological stress but she was, it seems, well able in August of last year to apply for a review and if able to compose an application for a review, then why not able to compose an application for an appeal?  Moreover there is no medical evidence of any relevance whatsoever in front of me today.  I can hardly take notice that she was granted an appointment on18 October as of any materiality at all, given that by then the 42 days had expired and moreover, that the result of the appointment is quite unknown to me.  As for the argument that the decision sought to be appealed against represents a breach of human rights or community law, it is not appropriate for me to embark upon an investigation of the merits of the underlying decision.  I could not come to an informed view on that without hearing the appeal, which is the very thing which is in issue. 

8	But I can say that her case is not a case which can manifestly be seen to be likely to succeed.  Moreover, if, as Mrs Mensah claims, the judgement below represents a flagrant breach of human rights and community law, that, of course, would be all the more reason for lodging a prompt appeal.  No case has been drawn to my attention that disables the national court from imposing time limits in relation to appeals; different considerations can apply to the original hearings but this, of course, would be, if anything, an appeal.  As for the relative prejudice suffered by Mrs Mensah and the Respondents, if she is not given leave out of time then, of course, she loses the chance of raising what are undoubtedly very stale arguments which have been ruled upon as having been already adjudicated upon and already, in some cases unsuccessfully appealed.  On the other side I cannot put wholly out of mind that there will be costs and delays suffered by the NHS Trusts and by Ms McDonald and the Thames Valley University were the matter to go forward.  In my judgment no exceptional circumstances of the kind required by the Abdelghafar case (as upheld recently in Aziz) have been shown, and, directing myself to rule afresh under the discretion that is given, I would refuse to grant an extension of time and accordingly I must dismiss the appeal.