MISS M B MUSTOFA v NEWHAM HEALTHCARE NHS TRUST [2002] EWCA Civ 1490

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
[2002] EWCA Civ 1490Case No A1/2002/0971Venue Royal Courts of Justice, Strand, London WC2, Friday, 11th October 2002
Between
MISS M B MUSTOFAAppellantNEWHAM HEALTHCARE NHS TRUSTRespondent
Before
Lord Justice MummeryThe Appellant did not appear and was not represented.The Respondent did not appear and was not represented.Date 11 October 2002

LORD JUSTICE MUMMERY:

This

[1]is an application for permission to appeal. The application was lodged by Miss M B Mustofa in a case against Newham Healthcare NHS Trust. The application was fixed to be heard at ten o'clock this morning, Friday 11th October. The applicant has not appeared and is not represented.[2]An application was made to the Master of the Civil Appeals Office by letter of 7th October 2002 to postpone today's hearing on the ground that the applicant was still suffering from the results of a serious car accident, in which she was involved on 13th August. The letter explained that she was injured in the accident. She suffered from whiplash. Since the accident she has suffered from depression and emotional disturbance, for which she is receiving medication. She enclosed a medical certificate and a copy of a prescription from a psychiatrist for depression. She also enclosed a letter from a hospital relating to an appointment with the psychiatrist on 4th October. She said in the letter that she was not fit enough to attend court today and therefore would appreciate a postponement of the hearing. Master Venne considered the application and refused it, saying that the matter should stay in the list for today.[3]A further application was made for an adjournment yesterday, 10th October. That was placed before me. I refused it, saying that the application would be dealt with today on the papers, including the skeleton argument served on behalf of the applicant. I pointed out that, if the applicant could not attend then she was, subject to the permission of the court, entitled to send someone to represent her or to speak on her behalf.[4]It appears that there is a history of applications for adjournments in this case preceding the accident in August. On 13th June this year Lord Justice Peter Gibson granted an adjournment, which had been requested for four weeks. On 10th July a further four-week adjournment was granted; and on 27th July a further request for an adjournment for six weeks was granted.[5]As the applicant has not attended for this morning's hearing or sent anyone to address the court on her behalf, I propose, as I indicated, to deal with this case now on the papers lodged with the court.[6]The background to this proposed appeal arises in the context of Miss Mustofa's employment with Newham Healthcare NHS Trust. From May 1985 until her dismissal on 18th September 2000 Miss Mustofa was employed as a Bengali-speaking health advocate. In the circumstances of her dismissal she issued proceedings in the Employment Tribunal. Her IT1 was presented on 18th December 2000. She claimed unfair dismissal, sex and race discrimination and victimisation. In box 11 of the IT1 she referred to the circumstances which led to her dismissal and the background to her complaints of discrimination and victimisation.[7]The application was one day out of time. In those circumstances a preliminary hearing was heard in the Employment Tribunal to determine how the matter should proceed. The hearing took place at Stratford on 11th July 2001. The applicant was represented by Mr Sykes of counsel. The tribunal sent the extended reasons for its decision on 30th July 2001. The unanimous decision of the tribunal was to dismiss the claim for unfair dismissal, holding that it was out of time and that no extension of time should be granted. The tribunal said:
"16.It is a unanimous conclusion of the Tribunal that in so far as the Applicant's claim for unfair dismissal is concerned the Tribunal does not have jurisdiction to consider this complaint as it was not lodged within the requisite time period. That decision was made by the Tribunal having considered the relevant case law and before evidence was heard by the Applicant. There was however no evidence given by the Applicant that persuaded the Tribunal that the decision should be reviewed. 17.The Applicant's representative confirmed that she had no additional evidence to give on the unfair dismissal issue."
[8]The tribunal directed that the claims with regard to sex and race discrimination should proceed and directions were given for the hearing of them.[9]The applicant sought to appeal against the dismissal of her claim for unfair dismissal and she lodged a notice of appeal with the Employment Appeal tribunal. Unfortunately, the time for appealing expired on 7th September 2001 and the notice of appeal was not received in the Employment Appeal Tribunal until 17th September 2001. There was a decision by the Registrar on the applicant's application for an extension of time for appealing. That was refused by order of 16th November 2001. The order was made after a hearing at which Mr Sykes again represented the applicant.[10]The applicant then appealed to the President of the Employment Appeal Tribunal. The hearing of that appeal took place on 21st February 2002, Mr Sykes of counsel again appearing for the appellant. The appeal was resisted by Mr Lewis, counsel for the respondent Healthcare NHS Trust. Mr

Justice Lindsay heard the appeal and concluded, in paragraph 15 of his judgment, as follows:

"All in all, it seems to me that I cannot regard myself as having had laid in front of me a full and acceptable explanation that enables me to treat Miss Mustofa's case as within that range of exceptions or exceptional circumstances in which additional time beyond the 42 days can be given for the lodging of a Notice of Appeal. Accordingly, I dismiss the appeal."
[11]An application was made by the respondent for an order for costs against the applicant, but the President declined to make such an order.[12]The applicant now seeks permission to appeal to this court. Permission to appeal can only be granted if there is a real prospect of the appeal succeeding. The proposed appeal must also be on a question of law. Further, the appeal in this case is against the exercise of the discretion of the Employment Appeal Tribunal in refusing to extend the time for appealing. An appeal against a discretion can only succeed if it is shown that the decision was plainly wrong, was the result of the erroneous application of a principle of law, or was the result of taking into account irrelevant matters or leaving out of account relevant matters.[13]In support of the proposed appeal a skeleton argument prepared by Mr Sykes and dated 7th May 2002 was served. I shall treat that skeleton argument as embodying the submissions which the applicant would wish to make on this appeal were she in attendance today.[14]It was submitted in the skeleton argument that the appeal had a reasonable prospect of success on a number of grounds. First, it was said that the Appeal Tribunal had erred in law in failing to apply the test laid down by the Court of Appeal in Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111 , that there must be an honest and full explanation to excuse the delay, when such an explanation was in all the circumstances offered. Secondly, it was said that the Appeal Tribunal erred in law in misapplying the further test for an extension of time in the case of Aziz , that the merits of the appeal be strong, in restating the threshold for the merits as "bound to succeed", when the merits of the appeal were strong. The skeleton argument then set out the factual background to the claims made by the applicant and summarised the proceedings down to the decision of the President dismissing the appeal.[15]In relation to the first ground of appeal, it was submitted that the applicant's medical evidence, honestly provided, was a sufficient (if not highly detailed) explanation that she was ill with depression over a relevant period and was handicapped by the doctor's reluctance to provide a highly detailed report. It was submitted that the Appeal Tribunal erred in washing its hands of her medical evidence when it indicated that she was ill with depression during the relevant period.[16]As to the second ground of appeal, submissions were made as to the consideration which must be given to the merits of the proposed appeal. References were made to the citations in the Court of Appeal judgment in Aziz . It was submitted that on this ground the Appeal Tribunal erred in reading the judgment in Aziz to be a test that the merits, in order to merit an extension of time, must be bound to succeed. It was submitted that that was a higher threshold than that "the merits of the case require it." It was also submitted that the Appeal Tribunal erred in holding that the merits of the appeal played only a small part in appeals from the Registrar for an extension of time. It was submitted that the Appeal Tribunal had played down the merits and that in this case the applicant had strong merits in her proposed appeal to the Appeal Tribunal.[17]In conclusion, it was stated that the proposed appeal had reasonable prospects of success; that permission to appeal should be granted; that the appeal should be allowed as the Appeal Tribunal had erred on both grounds; and that therefore the Registrar's decision should be set aside and time extended for filing the notice of appeal.[18]I have considered those detailed arguments. I am familiar with the relevant case law, which was considered in some detail by Mr Justice Lindsay in the judgment dismissing the appeal. In my judgment, this appeal has no real prospect of succeeding. The President of the Employment Appeal Tribunal considered the relevant evidence and applied to it, correctly, the relevant principles stated in the Employment Appeal Tribunal in Abdelghafar , as approved by the Court of Appeal in Aziz . In my judgment, the President of the Appeal Tribunal took proper account of all the relevant factors before deciding that there was no proper case for an extension of time. It cannot therefore be said with any real prospect of success that the discretion vested in the Employment Appeal Tribunal was exercised in a way which was plainly wrong or contained any error of law.[19]In those circumstances the application for permission to appeal is refused.

Order

application for permission to appeal dismissed.

Cited in 1 later judgment