Appeal No. UKEATPA/0708/10/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 May 2011

Before
HIS HONOUR JUDGE SEROTA QC
(SITTING ALONE)

MRS I K E FRANKS	APPELLANT

THE BOARD OF GOVERNORS FOR CHURCHMEAD 
CHURCH OF ENGLAND VOLUNTARY ASSISTED SCHOOL & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEAL FROM REGISTRAR’S ORDER

	APPEARANCES

For the Appellant	MRS I K E FRANKS
(The Appellant in Person)	
For the Respondents	MS JUDE SHEPHERD
(of Counsel)
Instructed by:
Messrs Weightmans Solicitors
First Floor
Three Piccadilly Place
Manchester
M1 3BN	

SUMMARY

Claimant’s time for appealing against an Order of the Deputy Registrar extended by reason of the Claimant’s inability to comply with the 5 day time limit.  The Claimant is disabled and suffers from a multiplicity of debilitating conditions, which on the medical evidence, substantially impeded her ability to comply with the time limits.

HIS HONOUR JUDGE SEROTA QC

1.	This is an appeal by Mrs Irene Franks from a decision of the Deputy Registrar dated 11 January 2011, refusing to extend time to appeal an Order of the Registrar of 20 October 2010, which was in itself an Order refusing to extend time for the lodging of an appeal under rule 11(1). 

2.	The Claimant is significantly disabled.  She has the misfortune to suffer from Ménière’s Disease.  This is a balance disorder that affects balance and hearing and has a debilitating effect.  She suffers from dyslexia, dyspraxia, learning difficulties, her mobility is impaired, she is confined regrettably to a wheelchair, she has a frozen shoulder and suffers from hypoglycaemia and has from time to time hypoglycaemic episodes, if that is the correct language.  She suffers from low blood pressure.  She had been admitted to hospital and released, when some of her drugs had been stopped shortly before 20 October.

3.	I need to explain something of the background to this matter.  She was employed by the Respondent school and her employment was terminated by reason of redundancy on 31 August 2008.  She brought a claim for disability discrimination on 6 February 2009 – well out of time – and the Employment Tribunal dismissed her claim at a pre-hearing review.  The Claimant applied for a review which was refused.  She submitted her appeal to the Employment Appeal Tribunal on 3 May, but did so without including all the necessary documentation.  Time was deemed to expire on 4 May and she was one day out of time in having the appeal properly constituted.

4.	On 24 June the Claimant applied to extend the time for serving a Notice of Appeal.  The matter came before the Registrar.  She declined to extend time.  The Order was emailed to the Claimant on 21 October; it was also put in the post to her.  She has told me today that she probably did not read the email until the weekend but she did obviously receive it and she also received a hard copy through the post on the Friday, which would be 22 October. 

5.	There is a five day time limit for appealing against a decision of the Registrar.  This is provided for in the Employment Appeal Tribunal Rules in rule 21.  Notice of Appeal is required to be given orally – that is unusual – or in writing within five days of the decision appealed from.  I note that this five day period is significantly less than the 42 day period prescribed for appeals from the Employment Tribunal.  It is also significantly in excess of the time within which a Respondent can lodge a Respondent’s Notice, which I believe is 14 days, and 28 days for seeking a review under rule 3(10).  I mention this because there is a decision of Underhill J (President) in Echendu v William Morrison Supermarkets PLC UKEATPA/1675/07 which applies the strict rules which this Appeal Tribunal applies in relation to extensions of time on appeals from the Employment Tribunal, which as I have said, is a 42 day time limit.

6.	In fact, although there is a five day time limit, in practice, as time starts to run from the date of the Order, which I take to be the seal date, it is unlikely that the Order will be served until the following day, which therefore gives four days to the would-be appellant.  Time expired on 22 October.  On 1 November 2010 the Claimant sent an email to the case officer, Mr Robert Newton.  Mr Newton had emailed the Order to her and I would take this email as in fact amounting to a request, albeit an informal one, to appeal against the decision of the Deputy Registrar.  She refers to the medical evidence, suggesting that that is the reason why she has been unable to comply with the requirement.  She asked that the Judge could look at the medical evidence from the consultant and dietician and, if necessary, the GP, in relation to her specific medical conditions, and she mentioned Ménière’s Disease, low blood sugar, and of course there was the evidence she had previously submitted relating to her dyslexia, dyspraxia and learning disability.

7.	On 3 November she emailed Mr Newton again and she said in terms that due to medical reasons she felt she should be allowed to appeal against the decision made on 20 October, “as at the time it was impossible for me to deal with the paperwork, as the problem with the disease is that it is very disabling, and in my case, has become so frequently (I have had 12 attacks since September, varying from a few hours to the worst one which lasted 4 days)”.  This was when she was in hospital and for some reason her medication to control the symptoms was stopped.

8.	I draw attention to a letter from her educational psychologist, Mr Harper, of 4 August 2010.  She was described as being dyspraxic:

“One way of seeing dyspraxia is that it is mainly a difficulty in perceiving accurately how time elapses.  Thus planning and co-ordination of movement are affected.  For example, she may find that on some days she thinks only half an hour has passed when in fact one or even two hours have passed.
What are some of the implications?
1.	Planning and executing sequences of movements is a problem.  Learning to speak and learning to write may have been difficult.  The problem is that these sequences need full attention and that it is difficult to think of other things at the same time.  Thus, writing and thinking simultaneously or speaking and thinking simultaneously or listening and writing simultaneously are difficult.  Therefore, it is likely that she may use well worn phrases or constructions.  The more rhythmical the movement sequence is, the easier it is.
2.	Rhythm is a help. […]
3.	Handwriting requires more co-ordination (combinations of fine muscle movements) than typing.  Once the keys are known, then typing can be quite rhythmical. […]
4.	Form-filling is particularly difficult. […]
5.	Planning behaviour for long-term projects (e.g. an assignment) is more difficult because she may not accurately estimate how much time a task demands. […]
6.	Meeting deadlines for assignments is a major problem. […]
7.	Stress (emotional or physical) can be more difficult for someone who is dyspraxic because most of the time they are working nearer to a tipping point. […]
8.	Some dyspraxic people react to stress by panicking.  They may get physical symptoms of panic or their mind might just ‘go blank’.”

9.	There is a letter from her GP of 23 November (that is, shortly after the appeal) confirming that the claimant suffers from Ménière’s Disease:

“She gets frequent attacks of vertigo, tinnitus and decreased hearing.  Over the last few weeks her attacks have increased to several times a day.  She finds them considerably debilitating and is unable to function in her day to day activities when she has an attack.  This has been made worse by the numerous numbers of medications she is on, including opiate based analgesia following recent shoulder surgery.”

10.	Mrs Franks has maintained in a letter to the Tribunal (page 190) that there was a full and acceptable reason for the delay in meeting the deadlines and she puts this down largely to the Ménière’s Disease attacks:

“They are unable to function, as they cannot, as was in my case, stand up, let alone, function!”

11.	She feels that perhaps the Employment Appeal Tribunal had not understood this. 

“Due to my disabilities, in particular, relating to the Ménière’s Disease, the condition is so disabling that I am unable to do anything when attacks occur, whether this is going out or telephoning people to arrange appointments.  The reason that this is difficult is because when the attacks occur, any sound is vibrated into the ear and makes the vertigo worse, thus preventing me from having any conversations.”

12.	She also of course had problems with her back and arthritis and a frozen shoulder and had had recently the operation to which I have referred.

13.	There is a further letter from her GP dated 19 January.  She was reviewed after her endoscopic sinus surgery and she told the doctor that over the last six months: 

“[...] she has had episodic vertigo that could last hours or days and is associated with right sided aural fullness, tinnitus and diminution in hearing.  The hearing in her right ear has gradually been going down over the years, and she wears bilateral hearing aids.”

14.	Her Ménière’s Disease had previously been described as stable but had evidently deteriorated.  In August 2010 her GP had confirmed that between January and April she had suffered from:

“Several medical complaints including abdominal pain, problems with passing urine needing catheterisation and then episodes of passing blood… She had to attend the A and E department on one occasion.  She also had episode of dizziness and persistently low blood pressure. She also suffered from a lot of pain with her left shoulder.  She also suffered from extreme tiredness and lethargy and …..tells me that these problems then made it difficult to be able to complete forms that she needed to in time.  We would therefore be grateful for your understanding on the matter.”

15.	The Ménière’s Disease is confirmed by Heatherwood and Wexham Park Hospitals in a letter of 2 November.  The Consultant Surgeon at Wexham Park Hospital on 28 January 2011 described her as a lady with:

“[...] recurrent vertigo which she has had since July 2009.  She has some fullness in the right ear and the hearing goes down with an attack.  Things are somewhat complicated as she has got a congenital sensori neural hearing loss which has been getting gradually worse since childhood.”

The Claimant’s case
16.	The Claimant’s case is that the Deputy Registrar failed to have sufficient regard to the medical evidence that she was unable to appeal within the five days, or in fact the four days that she had.  She draws attention to the court’s obligations to assist people with disability and drew attention to the Equal Treatment Benchbook chapter 5.1.  It is also right that the Employment Appeal Tribunal has assisted Mrs Franks today and it is apparent that she needs frequent breaks.  She was told that this was a facility that would be afforded to her, as indeed it has.

The law
17.	The Employment Appeal Tribunal has traditionally taken a strict view of failure to lodge Notices of Appeal within 42 days, and by lodging a Notice of Appeal it is necessary also to lodge various documents.  Appeals have effectively been dismissed that have been lodged just a day or even a portion of a day out of time.  The guidelines that are followed were set out in the case of United Arab Emirates v Abdelghafar [1995] IRLR 243 by Mummery J.

“27 (1) The timetable set by the EAT Rules should be observed by the parties and their lay and professional advisers.  Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or of the importance of compliance.  When parties are notified of the reasons for the industrial tribunal’s decision they are informed of the 42-day time limit for appealing.  The limits will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.
28 (2) The tribunal’s discretion will not be exercised, unless the appellant provides the tribunal with a full and honest explanation of the reason for non-compliance.  If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted.  Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred.  For example, the following explanations have been rejected by the Appeal Tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the Employment Appeal Tribunal or the Industrial tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality.  It is always possible, in cases where there may be unavoidable delay, for an extension to be agreed between the parties or granted by order of the Appeal Tribunal before the period has expired.  Alternatively, a notice of appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later.
29 (3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion.  It is, of course, impossible to make an exhaustive list of factors.  The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default.  The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short.  Extensions have been refused, even where the notice of appeal was served only one day out of time.  Parties who have decided to appeal are also strongly advised not to leave service of the notice of appeal until the last few days of the 42-day period.  If they do, they run the risk of delay in the delivery of post or of the misdirection of mail.  That risk can be avoided by service of the notice of appeal well within the period.  The merits of the appeal may be relevant, but are usually of little weight.  It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal.  Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal.  Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance.  If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused.”

18.	The questions Mummery J (as he then was) stated, which must be addressed by the Appeal Tribunal are: what is the explanation for the default?  Does it provide a good excuse for the default?  Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time?  As I have already mentioned, in Echendu, the present President, Underhill J, suggested that the same strict guidelines should be applied in cases of appeals being dealt with in the Employment Appeal Tribunal, or other applications, other than those that relate to simple appeals from the Employment Tribunals. 

19.	I drew the attention of the parties today to the case of Slingsby v Griffith Smith Solicitors [2008] All ER (D) 158 (Aug) and the decision of HHJ Burke.  In that case, HHJ Burke held that the strict Abdelghafar rules do not apply in the case of a respondent lodging his respondent’s notice.  He was given a 14 day period within which to do it but as it was not an appeal itself but simply defending the respondent against the appellant’s appeal, there was no reason to have the very strict time limit.  I do note, however, that HHJ Burke did have regard to the fact that the 14 day time limit was significantly less than the generous 42 day time limit for appealing from the decision of the Employment Tribunal. 

20.	In Echendu, the case of the President, I believe it related to an application for a review of a decision under rule 3(7) where there is a 28 day time limit.  The time limit in the present case is five days, but in practical terms four days (although of course being a period under seven days, Saturdays, Sundays and bank holidays are excluded from the time).

Conclusion
21.	It seems to me that there are exceptional circumstances in this case and it would be quite wrong in the case of someone with Mrs Franks’ disabilities, who was clearly significantly impaired in her ability to comply with the time limit, to refuse to extend time.  She has a consistent history of failing to meet time limits and the fact that there is such a consistent history suggests to me that it is not something that is being done deliberately in order to cause delay, but it is caused by her inability by reason of her disabilities to comply with time limits.  She is, as I have said, suffering from learning difficulties, dyspraxia and dyslexia as well as her other, more physical, difficulties.

22.	In those circumstances, just as HHJ Hand in the case of Hakim v Italia Conti Academy of Fine Arts extended, albeit it by one day by reason of the appellant’s dyslexia, the time for lodging an appeal against a decision of the Employment Tribunal, I think it appropriate in these circumstances to extend the time and I do extend the time until 1 or 3 November as the case may be for the lodging of a Notice of Appeal.  I propose the appeal will now have to be heard on its merits.  

23.	I think it would be extremely helpful to all concerned if the Claimant, whose skeleton argument, with no disrespect, is somewhat difficult to follow, were to provide a relatively short witness statement in which she explained in simple terms why it was that she failed to lodge her Notice of Appeal or to give notice of an intention to appeal against the decision of the Deputy Registrar of 20 October 2010.  That statement, which should be concise, should be filed within 21 days from the date that the Order that I am making is sealed.  The Order – I explain this for the benefit of Mrs Franks – will have a court stamp on it with a date.  That date is the date from which your time of 21 days starts to run.

24.	Ms Shepherd has made a very powerful submission for saying that I should order disclosure by the Claimant of her medical records in order, as put by Ms Shepherd, the parties should be on a level playing field and so that she will be in a position to assess the medical reports.  In my experience it is most unusual for medical records to be directed to be produced in a case in an Employment Tribunal or this Tribunal where a medical issue is raised, because the Employment Tribunal or this Tribunal will simply expect to see medical reports.  There are a number of medical reports in this case and I direct that the Claimant should use her best endeavours to produce a further report from Mr Aldren, the Consultant ENT Surgeon, within 28 days of the seal date of this Order.