Franks v The Board of Governors for Churchmead Church of England Voluntary Assisted School & Ors

An extension of time may be granted exceptionally where the applicant gives a full and honest explanation which amounts to a good excuse for default. The ordinarily strict approach to time limits does not require refusal where medical evidence establishes that disability and debilitating illness substantially impaired the applicant’s ability to comply with a very short time limit. The tribunal should assess the explanation, whether it excuses the default, and whether the circumstances justify an exceptional extension.

The claimant, a former employee of the respondent school, had brought an out-of-time disability discrimination claim. Following the Employment Tribunal’s dismissal of that claim and refusal of a review, her proposed appeal was not properly constituted within time.

The Registrar refused an extension. The Deputy Registrar then refused to extend time for the claimant to appeal the Registrar’s order. The claimant appealed that latter refusal under rule 21 of the Employment Appeal Tribunal Rules.

The central issue was whether her multiple disabilities and medical conditions provided an exceptional and sufficient explanation for her failure to comply with the effective four-day period for appealing the Deputy Registrar’s decision.

1. Appeal allowed. The Deputy Registrar’s refusal to extend time could not stand. Time was extended to 1 or 3 November 2010, so that the claimant’s appeal could proceed on its merits.

2. The Tribunal applied the strict extension-of-time guidance in United Arab Emirates v Abdelghafar, [1995] IRLR 243. The necessary questions were the explanation for default, whether it provided a good excuse, and whether exceptional circumstances justified an extension.

3. Those requirements were met. The claimant had provided consistent medical evidence of Ménière’s disease, recurrent disabling vertigo, dyslexia, dyspraxia, learning difficulties, impaired mobility and other medical problems. The evidence showed that these conditions substantially impaired her capacity to deal with paperwork and meet deadlines during the relevant period.

4. Her history of missed time limits did not indicate deliberate delay. Rather, it supported the conclusion that her disabilities impaired her ability to comply. Given the unusually short practical period available under rule 21, refusal of an extension would have been wrong.

5. The Tribunal directed the claimant to provide a concise witness statement explaining the failure to lodge notice of appeal. It declined to order disclosure of her medical records, observing that medical reports were ordinarily the appropriate evidence where a medical issue arose, and directed her to use best endeavours to obtain a further report from her consultant ENT surgeon.

• Employment Appeal Tribunal: Appeal allowed from the Deputy Registrar’s order of 11 January 2011. Time to appeal the Registrar’s order of 20 October 2010 was extended.

• Employment Appeal Tribunal: The Registrar had refused an extension of time for lodging the claimant’s proposed appeal.

• Employment Tribunal: The claimant’s disability discrimination claim was dismissed at a pre-hearing review as out of time. Her application for a review was refused.