Mr O’Cathail suffers from a stress-related disability. His Employment Tribunal claim for disability-related harassment was rejected by the Employment Tribunal and he sought to appeal to the Employment Appeal Tribunal on this point. However, although he submitted the notice of appeal on time he neglected to include other necessary documents (such as the judgment and reasons of the Employment Tribunal (“ET”). The EAT rejected his application for an extension of time to file the notice of appeal as it considered he did not have a sufficiently good reason for doing so (he had a panic attack on the day that he was supposed to file the other papers). The Court of Appeal also rejected his argument that he had good reason for an extension of time.
The facts of O’Cathail v Transport for London
Mr O’Cathail (“the Claimant”) became an employee of Transport for London (“the Respondent”) on 1 June 2007. The Claimant went off work sick in June 2007 and didn’t return to work before his dismissal in December 2010. Prior to being dismissed he submitted a claim to the Employment Tribunal for disability discrimination (failure to make reasonable adjustments and harassment), among other claims.
The Employment Tribunal hearing for his disability discrimination claim took place in November 2009. The Employment Tribunal found the Respondent was liable for a failure to make reasonable adjustments for the Claimant’s disability but rejected his claim for disability-related harassment. The ET wrote to the parties on 16 December 2009 giving reasons for its decision. The parties had 42 days from the date of the ET’s correspondence to submit their appeals. The Claimant appealed the decision on 26 January 2010, one day prior to the expiry of the time for the appeal. However, he didn’t submit the requisite documents (the judgment and reasons of the Employment Tribunal). He subsequently had a panic attack because of this and could only email the judgment to the Employment Appeal Tribunal on 28 January 2010, one day after the date of the expiry of the time limit. The EAT rejected the appeal as out of time. The Claimant appealed to the Court of Appeal.
The law relating to granting extensions for appeals
If a notice of appeal is submitted out of time then an application for extension of time can be made. An application won’t be considered by the Employment Appeal Tribunal until a valid notice of appeal has been filed (including the notice of appeal, judgment of the Employment Tribunal, written reasons for the decision of the Employment Tribunal, the ET1 and ET3). The EAT will only grant an extension of time to an applicant if the applicant can show good reason for the delay. The test for “good reason” is contained within United Arab Emirates v Abdelghafar. The Abdelghafar test involves an analysis of:
- What the explanation is for the default (it must be a full, honest and acceptable explanation)
- Whether there is a good excuse for the default (using McMullen’s “staged” test); and
- Whether there are circumstances which justify the Tribunal taking the exceptional step of granting an extension of time (including, among other things, a consideration of the EAT believes there is procedural abuse taking place, the length of the delay, and when the notice was posted or emailed)
This is an extremely strict test and if a notice of appeal is filed out of time then it is improbable (unless there are extreme circumstances) that an extension of time will be granted.
The Court of Appeal’s judgment in O’Cathail v Transport for London
The Court of Appeal dismissed the Claimant’s appeal. The Court accepted the Claimant’s evidence as to why he had submitted the appeal late but concluded that he had not demonstrated that the EAT’s decision to extend time was wrong, or it had erred on a point of law, or that it was wrong to refuse to extend time. Further, the Claimant irritated the Court of Appeal by making unfounded allegations against the judge handling the case at the ET stage.
Our specialist employment lawyers’ thoughts on O’Cathail v Transport for London
Firstly, don’t make serious allegations that you can’t prove before the Court of Appeal (or any court) which call into question the credibility of the judicial system. You’re likely to face an uphill battle if you do. Secondly, this case demonstrates that it is extremely difficult to have an out-of-time appeal granted an extension of time.