Vlachopoulou v Associated Press Ltd [1996] UKEAT 578_96_0212

EAT
Vlachopoulou v Associated Press Ltd
[1996] UKEAT 578_96_0212 · 1996-12-02

JUDGE LEVY QC :

Miss Vlachopoulou, the appellant, was employed by the Associated Press Ltd from 7th August 1989 until 31st December 1994. She claimed to have suffered from harassment and ill treatment, and to have been constructively dismissed on the latter date. Unhappily for her she did not commence proceedings before an Industrial Tribunal by making an application to it until 20th November 1995. A point was taken that her proceedings had been brought out of time, and ultimately they were dismissed for that reason. She thus has had the misfortune not to have had a proper hearing of her complaint on its merits before an Industrial Tribunal.She had appealed to this court from the decision of the Industrial Tribunal refusing to extend the time limits. We should say that the original hearing before the Industrial Tribunal on the procedural point was on 29th March 1996 and the decision was sent to the parties on 18th April 1996. The appellant appeared in person and there was Counsel present for the respondents.It is quite clear to us that the Chairman was very sympathetic to the appellant's medical condition, and indeed sympathetic to her claim. He says in the course of the Extended Reasons that because of her illnesses, he would have certainly not been prepared to strictly to interpret the rule, and indeed if she had been a little out time it would have been extended. In paragraph 3 however the Extended Reasons state:
"Where I am not satisfied is the evidence regarding the Applicant's condition from March 1995 onwards. I think that although she was clearly suffering from some depression during that period, the depression was not so serious as to render her totally incapable of attending to her affairs. This is evident from the fact that she did at some stage try to see the Citizens Advice Bureau. I find therefore that so far as the claim of unfair dismissal is concerned, it was not reasonably practicable because of the depressive illness for the Applicant to present her claim within the period of three months beginning with the effective date of termination but she did not present it within such a period thereafter as was reasonable in that there is no real reason advanced to me for her delaying her Application and presenting in only in November 1995."
I should say that the Chairman had then, as we understand it, the benefit of a letter from her medical practitioner dated 7th November 1995. From this letter it was apparent that she was under medical certification from 10th November 1994 until 9th February 1995 and during that time she was unfit to work as a result of stress but that she did not see her medical practitioner after 9th February 1995 until 23rd October 1995. I should also say that the appellant told us that in the period following her dismissal she had been to see the Citizens Advice Bureau, albeit not to find out when she had to submit an application. She told us she was aware of that date from other sources.The appellant appealed for a review against the Chairman's decision. Again, it seems to us that there was a sensitive hearing of her review which resulted in a further decision from the Chairman. This was sent to the parties on 12th July 1996. The last paragraph reads as follows:
"3 The matters which the Applicant now puts forward do not convince me that this evidence has become available since the conclusion of the hearing and that its existence could not have been reasonably known of or foreseen at the time of the hearing. I have appreciated that the Applicant is in person and consequently might not be as well versed in the application of this Rule as somebody legally qualified might be. I have to remind myself however that the Rule is a strict one and the principle is not peculiar to the Tribunals but applies in all Courts which all apply a stringent test. It is necessary for the evidence not only not to have been available at the time, but no to have been discoverable by the exercise of reasonable diligence. The Applicant knew, or ought to have known, that the whole of the period between the expiry of the three month period and the fate of the presentation of the Application would be under scrutiny. In my view, it was incumbent upon her to produce evidence which would show that her depressive illness had, during the whole of that considerable period of time prevented her from presenting an Application."
We have listened to the appellant's courteous address this morning with great sympathy, but we cannot see that the manner in which the Chairman has exercised his discretion in this case is in anyway wrong. He points, in paragraphs of the decision to which we have not thus far referred to the difficulties of a respondent to an application such as that made by the appellant in preparing evidence so long after the events complained of have been made. He has made all allowances which he properly could for the appellant's illnesses, and has come, in our view, to a decision with which no appeal tribunal could possibly interfere by saying he had wrongly exercised his discretion which he undoubtedly had.In those circumstances we have to dismiss this appeal at this stage.