Kyi v Post Office [1999] UKEAT 508_98_1103

EAT
Kyi v Post Office
[1999] UKEAT 508_98_1103 · 1999-03-11
It was accepted by Mrs Walsh on Miss Kyi's behalf on this appeal and properly so accepted in our judgment, that the Registrar was purporting to make a decision as to whether time for lodging a Notice of Appeal should be extended and she was refusing to extend time.She submitted that in any event, I had a discretion which I had to exercise for myself in deciding whether time should be extended. I entirely agree and Mr Clayton on behalf of the Post Office, the Respondent to this appeal, did not oppose that view.The question therefore is simply, should time be extended and in the exercise of my discretion I have regard to the helpful guiding principles set out in United Arab Emirates v Abdelghafar [1995] IRLR 243 .The position in a nutshell is that the appeal was received here on 29 April 1998, it was against an Employment Tribunal decision promulgated on 16 March 1998, it was therefore two days out of time. It should have been received here on 27 April 1998.What has been the explanation that has been presented for the delay in lodging the notice of appeal on time? The way it is put is that the Appellant suffers from a depressive illness, that is supported or backed up by appropriate medical evidence which shows that she is very seriously ill; that she was under such stress during the 42 day period that she could not cope with the paperwork; as soon as she felt well enough, she brought her notice of appeal round to the Employment Appeal Tribunal by hand. Mrs Walsh also pointed out that the Industrial Tribunal decision appealed against effectively struck out all her many applications which she had brought against her employers, the Post Office, without there being a hearing of the merits of her complaint. That was a factor which she invited me to take into account and which I do.She also points out that the delay in this case is small, it is a matter of two days and that is also a matter which I am willing to take into account in the exercise of my discretion, in accordance with the passage in the Abdelghafar case at page 71(H). She points out that there is no prejudice and could have been no prejudice to the Post Office by their late Notice of Appeal and that I should treat Miss Kyi, who is of Burmese nationality, and of Asian ethnic origin, as a relatively inarticulate person, who is less competent than normal to cope with her affairs.On behalf of the Post Office, Mr Clayton of Counsel drew attention to a number of matters. He pointed out that the medical evidence did not support the Appellant's contention that she was unfit to handle her own affairs during the whole of the relevant 42 day period. The position is that between October 1997 and 30 March 1998 she was off work, certified as unfit for work. She attended the Industrial Tribunal hearing which gave rise to the decision against which the appeal has been made on 26 February 1998 and the Chairman of the Tribunal made an observation about her capacity to represent her own interest on that occasion which was inconsistent with a submission that she was incapable of handling her own affairs.On 30 March 1998, which was the last day of her absence from work, she applied to the Industrial Tribunal for a review of the decision which they had arrived at. Included with the papers which I have regard to, for the purposes of this hearing, are various medical documents.The first in time is a letter dated 19 March 1996 from a consultant psychiatrist who writes that he had seen Miss Kyi on 18 November 1996. Essentially, he reported that "she came to see me because she feels that she has suffered from harassment at work", extended over a period of time and felt that the management had not taken any adequate action. He indicated that he felt that she was under considerable stress which is manifesting itself in the form of extreme anger and fearfulness, but that she was not prepared to take any medication because she feels that this is related to her situation. He concluded:
"........I did not see any signs of frank psychotic illness, however her daily life is severely affected as a result of that."
That letter is addressed to the Manager of the Employment Appeal Tribunal and asks if the EAT could look into the matter.The second is from an organisation called Imperative whose object is to address, as it puts it, workplace bullying sensitively. That is not a medical document as such.The next documents is relevant, and is dated 5 March 1998 from the Lisson Grove Health Centre where the doctor concerned addressed, to whom it may concern, says:
"This woman is suffering from severe stress, depression and anxiety. Over the past 6 years she has experienced consistent harassment in the workplace and has suffered because of this experience. She has been off work since October 1997 to the present and was off for 6 months in 1996/1997."
Then there are two medical certificates dated respectively the 3rd and 4th January 1999 which emanate from the Lisson Grove Health Centre and certify her as being unfit for work due to stress/anxiety and depression.Accordingly, Counsel for the Respondents submitted that although she has been off work for periods of time, during much of the relevant period in this case (for at least four weeks of it) she was back at work and during the week prior to returning to work she had been capable of attending the Tribunal and of applying for a review of their decision.It seems to me that this is not a case where I should extend time, however sympathetic I may be and am, to Miss Kyi's predicament. I accept that the explanation for the delay in this case is due to her mental health situation, but I am quite satisfied that had she wished to do so, she was in a state where she could have presented her Notice of Appeal in time, either herself or by using a friend who she says she used for applying to the Industrial Tribunal for a review of its decision. In the end therefore, I am not prepared to accept that she was so depressed and confused that she could not handle her own affairs.In the exercise of my discretion, I do not think this is a case where I have been provided with an explanation for the delay which excuses it.I would wish to add that it seems to me that the wording of the Registrar's Order could lead to confusion and possibly injustice. In this case, the two documents to which she refers, were letters from the Employment Appeal Tribunal which were returned to the Employment Appeal Tribunal on the basis that they were not being accepted alternatively could not be delivered. But quite apart from that it seems to me that the Registrar is required to exercise her discretion on the application for an extension of time, on the basis of the material before her. If parties, despite a request, do not wish to add anything to what they have already said, that is their right, although obviously, the fact that they have not responded to what the other party has said, may well be a material factor which will weigh with her in the exercise of her discretion.As I say, I have a new discretion to exercise and I am not prepared to extend time in this case. Accordingly, the appeal against her refusal will be dismissed.