The claimant brought a claim for unfair dismissal which was dismissed because he did not have the requisite 1 year continuous employment. He then brought a claim of sex discrimination which was also dismissed as it was out of time. The claimant lodged an appeal which was not properly instituted until more than 2 months after the deadline. The claimant argued that the notice of appeal was late because of an eye injury he had suffered, combined with depression and drug use. The registrar refused to extend time, saying that he was seeking to use his own inactivity as a reason for extending the time limit and that this was not an acceptable excuse. The claimant appealed.

The EAT upheld the registrar's decision. There was no exceptional reason for extending time in this case.
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Appeal No. UKEATPA/1104/11/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 8 March 2012

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

MR J P CONNELLY (APPELLANT)

BIFFA WASTE SERVICES (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
Written Submissions

For the Respondent
MR CHRISTOPHER EDWARDS (of Counsel)

Instructed by:
TLT Solicitors
One Redcliff Street
Bristol
BS1 6TP

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

Longstanding stress and cannabis abuse were not reasons for exercising discretion to enlarge time to submit a Notice of Appeal. The Claimant's eye injury did not prevent him making applications in writing to the Employment Tribunal so could not be relied on as an excuse for lodging a late Notice of Appeal. Muschett and Miller applied. Registrar's decision upheld.

1. This is an appeal from the order of the Registrar given on 19 December 2011 in which she refused to extend time for the registration of the appeal. I will refer to the parties as the Claimant and the Respondent.

1. The appeal itself is in substance against Judgments of Employment Judge Harper on 8 November 2010 and of Employment Judge Tickle on 29 March 2011. The point about the case was that at the first Pre-Hearing Review Judge Harper decided that there was no jurisdiction to hear the Claimant's unfair dismissal claim, since he did not have one year's continuous employment. A second claim was lodged alleging sex discrimination, and at a second PHR, on 29 March 2011 Employment Judge Tickle dismissed all the complaints in that second claim as they were all out of time. Thus the time for lodging an appeal began to run on the date of Judge Tickle's order at the latest, which was made on 15 April 2011.

1. The Claimant before Judge Harper had represented himself, and the Respondent had been represented by an HR manager; there are no written reasons for the Judgment. The Judgment of Employment Judge Tickle occurred with the same representation, and the essential argument was that the claim should be lodged within three months and it was not, and discretion should be exercised.

1. The matter returned to the Employment Tribunal, this time again before Employment Judge Tickle, who refused to grant an application for review, noting that the Claimant had sought advice from Citizens' Advice before the cases began in July 2010 and there was no basis under the rules for any review to be ordered.

1. The Registrar's reasoning was as follows:

"The appellant applies for an extension of time in which to appeal an amended decision of the employment tribunal promulgated on the 15th April 2011. The final date for appeal was the 27th May 2011. The appeal was received on the 25th July 2011 but was not properly instituted until the 2nd August. The decision of the 15th April 2011 dismissed the claim as the substance was the same as the unfair dismissal claim made in claim 1402601/10, dismissed on the 8th November 2010 as the appellant did not have one year's continuous service before dismissal. The appellant states that he is out of time to appeal because he has a 'serious eye injury' and inflammation of the eyes. He was a hospital inpatient for three days. He also suffers from depression and drug dependency. He submits some medical certificates of unfitness to work and a short note stating that his eye condition is optic neuritis. This is an eye condition that can correct itself. The appellant has submitted no supporting medical evidence to show the degree of debility that he claims. […]

Many appellants act for themselves without legal advice, even whilst suffering from serious illness, yet they manage to file their appeals in time. It seems unlikely that the appellant could not procure the assistance of someone. He has access to a computer and to email. He does not claim that he was unaware of the time limits. He has submitted no evidence that would justify an extension of time of this length. In reality, he seeks to use his own inactivity as a reason for extending the time limit and I do not find that this is an acceptable excuse. The appellant must accept that there comes a time when litigation should be at end and this is an appeal that is bound to fail in any event."

1. The Registrar addressed herself to the correct authorities, cited in her Judgment. The Claimant was dissatisfied and appealed to the single Judge.

1. The relevant provisions of law and practice are set out in my Judgment in Muschett v London Borough of Hounslow [2009] ICR 424 and also following that is the Judgment in Jurkowska v Hlmad Ltd [2008] ICR 841 CA. In Miller v Lambeth Primary Care Trust [2011] EWCA Civ 722 the Court of Appeal upheld my Judgment in that case, which expressed the serious problems faced by the EAT of very large numbers of potential appellants failing to enclose the relevant documentation, which is in simple terms, and the work that is done in trying to rescue such faults before the deadline closes. The Practice Direction indicates which documents must be enclosed, and the Claimant's case was deficient.

1. As I indicated in Muschett, hearings are frequently conducted on live evidence at a re-hearing, and here the Respondent has produced a written skeleton argument from Mr Edwards of counsel, who has attended today; the Claimant has relied upon written submissions only, and a skeleton argument, to which I pay attention.

1. The central point in the Claimant's argument relates to the two issues that he put before the court as an explanation and an excuse for failing to meet the 42 day deadline. It is not disputed that the deadline was exceeded, and so the matter is one of discretion. As to the first, he contends that he has suffered an eye injury. I have no doubt that the material that he produces indicates correctly that he suffered an eye lesion. The problem for him is the chronology, because with time running from 15 April 2011 he had already injured his eye and before that date was aware that there was a time limit. Yet after the injury – indeed, the day after – on 11 April 2011 he was able to submit a detailed application for review and to submit further evidence in support of that review on 27 April 2011. Judge Tickle's refusal to vary the decision occurred on 4 May 2011, and so the Claimant had plenty of time before 27 May 2011 in which to present a Notice of Appeal, and he did not. It seems to me that if the lesion to his eye did not prevent his making the two submissions in writing to the Employment Tribunal, they did not prevent his submitting a Notice of Appeal. This ground cannot succeed.

1. The second relates to his account of his depression and stress, and his dependence on cannabis. That is an explanation; it is not an excuse. Whatever stress, depression and cannabis abuse there was, was in place before September 2010, and he was able to conduct proceedings in the ET and, indeed, to submit applications on a number of occasions. He knew about the deadlines and he obtained independent legal advice. In my judgment, it is not uncommon to find people suffering stress as a result of or associated with Tribunal proceedings, but that in itself is not an excuse for not putting in a Notice of Appeal in time.

1. There is no exceptional reason in this case, and so I will dismiss the appeal. The Claimant will have known that this was his opportunity to put forward reasons for my exercising discretion, and in the absence of them I accept in full the submissions in writing by Mr Edwards and have not called upon him to address me.