MR G OSLER v YMCA YOUTH & WORK SERVICE [1999] UKEAT 893_98_0105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 893_98_0105Case No Appeal No. PA/893/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G OSLERAPPELLANTYMCA YOUTH & WORK SERVICERESPONDENT
Before
Mr Justice MorisonDate 1 May 1999
[1]) DAS Legal Expenses Insurance Co Ltd DAS House Quay Side Temple Back Bristol BS1 6NH MR JUSTICE MORISON (PRESIDENT): The Appellant, Mr Osler, wishes to appeal from a decision of an Employment Tribunal held at Liverpool on 14 th May 1998 which concluded that his Originating Application alleging unfair dismissal against his former Employers, YMCA Youth & Work Service, was out of time. The essence of the decision was:
"I heard nothing that persuaded me that it was not reasonably practicable to have presented the Originating Application which was more than 5 years late in time the Applicant had, over the years, the benefit of guidance from the Job Centre and several solicitors."
The Notice of Appeal was submitted out of time – it was 2 days late. The Registrar refused to extend time and the question before me is whether, on an Appeal against her refusal I should now extend time myself. The essence of Mr Osler's explanation for why his Notice of Appeal was out of time was a combination of his psycological state of mind which may have deteriorated quite badly since he was employed over 5 years ago by the YMCA. His lack of appreciation of the true extent to which he was disabled by his medical condition and his confusion over an entry which was made on his calendar indicating 22/07/98, namely the Wednesday of 22 nd July which was correct as being the last date of getting a Notice of Appeal to us, and at some stage, he had assumed that that meant that he had to post his Notice of Appeal on that date. Acting on that false assumption he posted the Notice of Appeal to us which arrived on 24 th July, which was, as I have indicated, 2 days late.[2]I have to say that so far as this Court is concerned, I am satisfied that Mr Osler has given me a full and honest explanation for the delay in this case, but the question I must ask myself, in accordance with the principles set out helpfully, in United Arab Emirates –v- El Abdelghafar is whether the explanation provides a satisfactory or reasonable explanation for the delay. I do not think that it does on the facts of this case. It will be recalled that this is an Appeal against the Tribunal's refusal to consider his complaint of unfair dismissal which was brought a very long time out of time.[3]It is obvious, as it seems to me, that something must have triggered his desire to present the complaint to the Employment Tribunal well out of time and having presented the complaint in that way and lost before the Employment Tribunal I find it difficult to understand why Mr Osler waited until the last minute before putting in an Notice of Appeal. I would have expected, in his enthusiasm to have his case heard, to have appealed from the Employment Tribunal as soon as was reasonably practicable.[4]Whilst I am satisfied that he has been suffering from what may be described as a psychological problem and whilst he is to be congratulated for appreciating that he needs medical assistance, I am not persuaded that he was incapacitated from presenting a Notice of Appeal to the Employment Appeal Tribunal at any time within the 42 day period. Normally, I will not take into account the merits of any Appeal on an Appeal of this sort. However, it can be said with confidence that the Appeal which Mr Osler wished to make against the Employment Tribunal's decision was most unlikely to succeed.[5]It is in the President's experience that no application to an Employment Tribunal for unfair dismissal has ever been adjudicated upon, where the complaint was presented as long after the event as 5 years. In other words, Mr Osler may take comfort from the fact that by declining to accede to his appeal against the Registrar's Order, he is not losing anything of value to himself because the Appeal would, inevitably, have failed. Accordingly, I dismiss this Appeal.