The claimant had been dismissed from her employment and sought to initiate unfair dismissal claims. At a late stage she realised that she had only 42 days to submit her claim form, not 42 working days as she had thought and so submitted the form in a hurry. Relevant information was then missing as she had forgotten to photocopy both sides of her form. The claim was dismissed by the Registrar and that was upheld by the EAT.

In this application, she argued that the reason for this error was due to her chronic disability and should therefore be considered differently from a normal error. Elias LJ, in rejecting the application,   concluded that the finding that the error was not truly disability related was one that he was entitled to make. He also noted that the Court of Appeal “has confirmed the truly exceptional nature of allowing …. claims to be lodged out of time”

__________________

Case No: A2/2009/1260
Neutral Citation Number: [2010] EWCA Civ 46
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 21st January 2010

Before:

LORD JUSTICE ELIAS

• - - - - - - - - - - - - - - - - - - - -
  

Between:

**EPELLE (Applicant)

• and -
  

LONDON BOROUGH OF CAMDEN (Respondent)**

• - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

• - - - - - - - - - - - - - - - - - - - -
  

The Applicant appeared in person.

The Respondent did not appear and was not represented.

• - - - - - - - - - - - - - - - - - - - -
  

Judgment
(As Approved)

Crown Copyright©

Lord Justice Elias:

1. This is an appeal against a decision of HHJ Peter Clark, sitting in the Employment Appeal Tribunal.  He dismissed Miss Epelle’s appeal against a decision of the Registrar of the EAT, who had refused her an extension of time to lodge her appeal.  The background is essentially as follows.

1. The appellant, Miss Epelle, was employed by the London Borough of Camden.  She had brought proceedings, after termination of a contract, for constructive unfair dismissal and disability discrimination and she later sought to add a claim of detrimental treatment short of dismissal, but that was refused by the employment judge.

1. The case came before the employment tribunal, and they found that there was no constructive dismissal and no disability discrimination.  She appealed against that and lodged a Notice of Appeal on the last day of the 42-day period allowed to lodge an appeal, namely 15 April 2008.  Unfortunately the appeal was not properly instituted because there was a photocopying error and form ET1 had not been photocopied on both sides, only on one side, and therefore relevant information was missing.  She applied for an extension of time to the registrar.  That was opposed by the respondent, and the Registrar refused to extend time on paper.  She then sought to challenge that decision before the Employment Appeal Tribunal and, as I say, it came before HHJ Peter Clark.

1. She explained to him the problems that she had in lodging this claim.  She was under the impression that 42 days meant 42 working days and it was only on the day before the last day for lodging the claim that she appreciated that she might be under a misapprehension and so, she says, she worked all night in typing out her application, which takes her longer than it might take other people because of her disability.  She then took the papers to photocopy the next day and that is when she made the error, which meant the full documentation was not provided to the tribunal.

1. The judge considered the relevant law in this area.  It is right to say that the Court of Appeal, as Ward LJ observed in Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180 at [27], has taken a very tough approach to lodging claims in time and requires not only that basic papers are submitted but the rules require full details are submitted within the correct period.  Applications to extend time are but rarely granted.

1. The judge referred to some of the leading cases including the well known judgment of Mummery J, who was then president of the court, now Mummery LJ, in United Arab Emirates v Abdelghafar and Abbas [1995] ICR 65, which was approved by the Court of Appeal in Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111.  There is no complaint about the fact that the judge properly directed himself as to the material law.  The question is whether he properly applied it in circumstances of this case.

1. The argument for Miss Epelle, advanced before the judge, was that she had become stressed as a result of her disability and partly as a result of the pain that she was suffering as a consequence of having to stay up late and type her application.  She submitted, in other words, that the error was properly attributable to her disability and should not be treated as the kind of everyday error that sadly we all sometimes make when photocopying double-sided documents.

1. The judge considered a medical report from her general practitioner, Dr Rahman which indicated that she would on occasions be subject to depression resulting from her chronic condition and also that would result from stress.  The real question for HHJ Clark was whether he was satisfied that there was an exceptional explanation here, which would justify him allowing the extension of time.  His conclusions were that he did not accept the linkage between her spending, she says, 15 hours typing out her five-page Notice of Appeal, and the stress generated, and the photocopying error.  He concluded that the real reason for her overlooking the double-sided pages was that she was rushing to complete the documentation because she was under pressure to submit it on that particular day.  So, in summary, he thought that the photocopying error was not truly disability-related.

1. That, it seems to me, was a finding of fact which was open to the judge to make.  Miss Epelle makes a number of submissions before me, but I have to say I think in substance they are still seeking to re-open those conclusions of fact.  The first ground is that the judge failed to take into account the significance of the claimant’s disability and the relationship between the disability and the failure to notice three pages were missing.  I do not accept that, and the judge recognised that the disability could cause stress and the typing could do that, but the question was whether, in the circumstances, that was a true explanation as to why the photocopying error was made.  As I say, in truth it was a very elementary photocopying error, which, again, is easily made.  It is not a criticism.  It is easily made.  It is as easily made by people who are stressed in those circumstances because it is on the last day of lodging their claims, as it is for somebody who has a disability which might exacerbate that stress, and that is what the judge had to consider.

1. The other ground principally relied upon - and it is really a related ground - is that the judge reached the wrong conclusion.  I was taken to some authorities which say the action may be unlawful if it is related to disability.  That is not really relevant in this case.  In any event, the conclusion of the judge, who had asked whether there were exceptional circumstances, was that this particular error was not in truth related to the disability.  It was not related to stress resulting from that, but simply a photocopying error.

1. I do understand that Miss Epelle feels aggrieved by this.  I think in some ways her grievance is also that which is felt by, I have to say, a number of appellants who come before these courts when they put their claims in late or put their applications in with insufficient detail, as occurred in this case, but the strict approach of the courts to these appeals is partly because there is 42 days to lodge the appeals and to ensure that there is finality.  The Court of Appeal has confirmed the truly exceptional nature of allowing these claims to be lodged out of time.  The judge was not satisfied that this was an exceptional case, and I think that was a conclusion that he was entitled to reach on the facts.  I see no realistic prospect of this appeal succeeding.  Nor did Wall LJ when he refused leave on paper.

1. I can only add, and I have said to Miss Epelle, that on the face of it, at least, the appeal also, on the merits, had grave difficulties.  She thinks otherwise.  Be that as it may if she had been given permission and had pursued and lost this appeal, there will have been very significant costs implications which did not apply at the lower levels.  I simply say that because, putting it bluntly, in the longer term it may be a better outcome for her than ending up fighting this case and losing it with all the implications that that has.

1. There it is, Miss Epelle.  I am grateful for your submissions.  You put them very clearly.

Order: Application refused