The claimant had been successful in pursuing a claim for making reasonable adjustments to allow for his disability but failed in a harassment claim. His depression meant that he delayed lodging an appeal of the harassment finding until the last but one day of the 42 day time limit but when he arrived at the EAT he was told that he also needed to lodge a copy of the judgment under appeal. He wrote a note on the application noting the issue, attributing the error to his illness and promising to put it in the post the next day. The stress caused him to be ill the next day but the day after he emailed the judgment and also put a copy in the post. He applied for an extension but that was refused. On appeal Slade J found that the claimant's illness did contribute to his error but that the authorities required strict adherence to the time limits and in this case an extension should not be granted.

Jackson LJ allows the application to appeal, albeit "after some considerable hesitation" as the exceptional circumstances of the case may mean that the judge had erred, particularly as

"first of all, the notice of appeal was lodged in time, indeed lodged a day early; secondly, the additional documents which were required were only one day late; thirdly, it does appear that although the 42 day time limit is a generous one, it is arguable that the applicant's disability prevented him getting to work on drafting his notice of appeal until a significant part of that time period had expired; fourthly, it does seem to me to be arguable that the applicant's delay of one day beyond the deadline in respect of filing supplemental documents was a delay which was referable to and arose out of the applicant's disability."
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Case No: A2/2011/0432

Neutral Citation Number: [2012] EWCA Civ 92

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 20 January 2012

Before:

LORD JUSTICE JACKSON

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Between:

O'CATHAIL (Applicant)

- and -

TRANSPORT FOR LONDON (Respondent)

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(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)

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The Applicant appeared in person.

The Respondent did not appear and was not represented.

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Judgment

(As Approved)

Crown Copyright ©

Lord Justice Jackson:

1. This is an application for permission to appeal. The facts giving rise to these proceedings are as follows. The applicant began to work for the respondent in December 2005 on a temporary basis. His position became permanent in 2007. He was or became employed to work in the Oyster refunds department. Following a number of grievances raised by the applicant, an informal meeting was held on 2 January 2008 to discuss one such grievance. The applicant left work sick and has not returned to work since that date.

1. It has been accepted that he is a disabled person within the meaning of the Disability Discrimination Act 1995, to which I shall refer as the 1995 Act. This is because he suffers from depression and anxiety and is subject to panic attacks. From January 2008 onwards a number of meetings were arranged at which the applicant requested to be accompanied by his wife for moral support. The respondent employer, Transport for London, refused to allow that because it was the policy of that organisation that only trade unions could attend at such events.

1. In due course the applicant made two complaints against his employers, Transport for London: first, a failure to make reasonable adjustments as required under section 4A of the 1995 Act in relation to the refusal to allow his wife to attend meetings; secondly, a complaint of harassment contrary to section 4(3) of the 1995 Act. The claim was heard by an employment tribunal. The tribunal found that the claim in respect of failure to make reasonable adjustments was well founded but it dismissed the harassment claim. In relation to the claim to make reasonable adjustments, the tribunal awarded £3000 compensation.

1. The applicant wished to appeal the decision to dismiss the second half of his claim, namely the claim for harassment. Under the time limits set out in the rules the applicant was obliged to lodge his notice of appeal within 42 days, namely by 27 January 2010. The applicant asserts that he was unable to start work on his notice of appeal for some time owing to his disappointment and depression and so forth following the lack of success of the harassment claim in the Employment Tribunal. In due course the applicant did prepare his notice of appeal and on 26 January, one day before the time limit expired, he attended the Employment Appeal Tribunal in order to lodge the notice of appeal. The applicant mistakenly believed that that was the final day for doing so but nothing turns on that issue. Unfortunately the applicant forgot to bring with him the employment tribunal judgment and the reasons given by the Employment Tribunal. These documents were required to be lodged at the same time as the Notice of Appeal. This omission was pointed out to the applicant and he made the following note on the Notice of Appeal.

"Please accept my sincere apologies, I am at the Employment Appeal reception and have realised that I have forgotten to include a copy of the Judgment that I am appealing. Please take into account that my disabilities cause me difficulties that affect my ability to concentrate and carry out tasks. I will submit a copy of the Judgment tomorrow by Special Delivery."

1. The applicant asserts that the stress of these events caused him to suffer a panic attack and that caused him to be ill through 27 January as well. As a result he asserts that he was unable to attend at the Employment Appeal Tribunal to lodge the remaining documents within the time limit.

1. However, what the applicant did do was this; he went to a local post office and posted the missing documents on 27 January by special delivery and these documents arrived at the Employment Appeal Tribunal on 28 January. Also the applicant enlisted the assistance of a neighbour who had a scanning machine. The applicant scanned in the missing documents and then on 28 January he emailed the missing documents to the Employment Appeal Tribunal. It was pointed out to the applicant that he would need an extension of time of one day if his appeal were going to be allowed to go forward. The applicant duly applied for such an extension. The registrar, having consulted with the judge in charge of the Employment Appeal Tribunal, refused that application for an extension. The applicant then appealed that refusal.

1. The appeal against the refusal to extend time by one day was heard by Slade J on 1 February 2011. The judge heard oral evidence. Indeed both the applicant and his wife gave evidence on that occasion. The judge refused to extend time, pointing out quite rightly that the time limits set out in the rules governing appeals to the Employment Tribunal are generous in that 42 days are allowed and those time limits are generally strictly enforced. In the course of her clear and helpful judgment the judge made certain findings of fact. The findings at paragraphs 27 and 28 read as follows:

"27 In my judgment on the evidence the reason why the Claimant did not bring with him the documents necessary to fully comply with the rules as to Notices of Appeal did relate to his disability. I accept that his condition does, from time to time, render him forgetful, unable to concentrate and liable to do things as he did on that day, namely to forget important documents.

28 Further, I accept that his disability was a contributory factor in his inability to travel to the Employment Appeal Tribunal on 27 February."

The judge then went on to remind herself of the authorities concerning strict adherence to time limits for lodging appeals before coming to the conclusion that time should not be extended in this instance.

1. The applicant was aggrieved by that decision. He submits that his rights under the Human Rights Act, the 1995 Act and a number of other statutes and provisions have been infringed. He submits that the judge erred in law in upholding the refusal to extend time. The applicant is a litigant in person. He has set out his concerns and complaints in a lengthy statement, part of which was read out today and part of which I read to myself. That statement is of course helpful, but since the applicant is a litigant in person I have not had the benefit of any citation of the relevant authorities. Despite that handicap, it does seem to me arguable that the circumstances of this case are so exceptional that the judge erred in failing to extend time by one day. The circumstances which seem to me particularly significant are these: first of all, the notice of appeal was lodged in time, indeed lodged a day early; secondly, the additional documents which were required were only one day late; thirdly, it does appear that although the 42 day time limit is a generous one, it is arguable that the applicant's disability prevented him getting to work on drafting his notice of appeal until a significant part of that time period had expired; fourthly, it does seem to me to be arguable that the applicant's delay of one day beyond the deadline in respect of filing supplemental documents was a delay which was referable to and arose out of the applicant's disability. That disability had been recognised by the Employment Tribunal and was the basis for its award of compensation under the first and successful limb of the applicant's claim.

1. For all these reasons and after some considerable hesitation I have come to the conclusion that I am simply not prepared to shut the applicant out from pursuing his appeal. I do regard it as an appeal which raises or might raise an important point of principle or practice and thus as satisfying the requirements of rule 52.13 of the Civil Procedure Rules. Accordingly, permission to appeal is granted.

Order: Application granted