Extension of time allowed due to poor mental health

In MTN-1 Ltd v O’Daly the EAT granted an extension of time for an employer to lodge an appeal against a judgment in default. The employer had missed the deadline because its CEO’s mental health prevented him from focusing on the proceedings.

The EAT determined that the mental health of the CEO materially and substantially influenced why the appeal was late and, on that basis, granted the extension.

The relevant law

The legal basis allowing the EAT to grant an extension of time is contained within the Employment Appeal Tribunal Rules 1993 at Rule 37(1) which states:

“The time prescribed by these Rules or by order of the Appeal Tribunal for doing any act may be extended (whether it has already expired or not) or abridged, and the date appointed for any purpose may be altered, by order of the Tribunal.”

The case of J v K, (Court of Appeal 2019), considered the relevance of the appellant’s mental ill-health (or other disability) where the appeal was lodged late and the need to take that into account when deciding whether to grant an extension of time.

That judgment set out three generic points of guidance which are to be considered when dealing with a late appeal due to mental-ill health:

• 1. Whether medical evidence shows the appellant was indeed suffering from mental ill-health at the time in question;
• 2. If the above is satisfied, whether the condition in question explains or excuses the failure to institute the appeal in time; and
• 3. If the Tribunal finds that the failure to institute the appeal in time was indeed the result of the appellant’s mental ill-health, justice will usually require the grant of an extension. But there may be particular cases, especially where the delay has been long, where it does not.

Background

The Claimant was employed as Operations Director until his dismissal on 17 September 2019. He was dismissed by the majority shareholder and CEO, Mr Tims, following a breakdown in their working relationship. He issued a claim for unfair and wrongful dismissal in January 2020. The claim form was sent to the Respondent’s registered address, which was the office of their accountants. The claim form was left in an envelope on Mr Tims’ desk. Whilst Mr Tims was not aware of the contents, he was aware there was an unopened envelope at the office.

Response to the claim form was due by 5 March 2020. Mr Tims claimed he was not aware of the Employment Tribunal proceedings until the Claimant’s solicitors emailed the Respondent’s solicitors on 15 May 2020. No response was entered by the Respondent and accordingly, a Rule 21 judgment in default was entered against them in their absence on 27 April 2020.

The Employment Tribunal awarded compensation for wrongful and unfair dismissal of £4,462.50 and £90,578.60 respectively.

The Respondent’s deadline for appeal was 8 June 2020 but they failed to lodge their appeal until after 4pm on that date, making it one day out of time.

The Respondent made various applications to the Employment Tribunal including an application for an extension of time to enter their response.

The Respondent alleged the reason for the late appeal stemmed from issues that began during the COVID-19 pandemic. The Respondent’s offices had closed in March 2020, leaving Mr Tims to deal with a cash flow emergency whilst a close friend was very seriously ill with COVID-19. Mr Tims exhibited screenshots of messages from this period where he discussed his extreme mental state with a friend.

Mr Tims was “in a very dark place” from May 2020, whilst he was aware of the proceedings he was not fit to engage with them. The Respondent’s solicitors repeatedly contacted Mr Tims for instructions. It was the Respondent’s case that Mr Tims’ ADHD and depression resulted in a hyper focus, causing him to focus on the crisis facing the business rather than the proceedings. It was not until the afternoon of 8 June 2020 that Mr Tims provided instructions to institute the appeal.

EAT decision

The EAT had to determine two main issues: firstly, when the appeal was properly instituted; secondly, considering granting the extension of time.

The EAT confirmed that as the appeal had been lodged after 4pm on 8 June 2020 it was instituted on the next working day and was therefore one day out of time.

Regarding the extension of time, the Respondent submitted there were good grounds for time to be extended, namely Mr Tims’ mental impairments of ADHD, PTSD and long-term depression. The Claimant did not dispute Mr Tims’s ADHD and poor mental health but argued that the Respondent was a large business and other employees or their solicitors could have dealt with proceedings and instituted the appeal in time.

The EAT held that aside from Mr Tims’ mental impairments, none of the features or circumstances relied upon by the Respondent could justify an extension of time – the following circumstances were highlighted:

• Mr Tims was not aware of the claim until 15 May 2020, but absent his impairments, there would be no excuse to not understand that the proceedings were issued before then;
• Mr Tims knew there was an unresolved dispute with the Claimant but left an unopened envelope in his office, had it not been for his mental impairments, one would usually have opened it and had three weeks to institute the appeal;
• Absent mental impairments, Mr Tims could have given instructions to his colleagues or solicitors to institute an appeal in time.

The only determining reason on whether the extension of time ought to be granted, was whether Mr Tims’ impairments, particularly ADHD and depression, explained the delay. The EAT applied the guidance formulated in J v K to the evidence.

Firstly, the medical evidence. The EAT attached weight to the report of Dr Dimitriou, a consultant psychiatrist. The report diagnosed Mr Tims with ADHD and a secondary diagnosis of complex PTSD.

Secondly, did the conditions explain the delay? The EAT accepted that Mr Tims had ADHD and depression. The EAT held that the hyper focus was related to work and that explained why Mr Tims did not find or open the envelope. It was also noted by the EAT that the sum the Claimant had been awarded by the default judgment was substantial – the fact Mr Tims had not acted to defend the proceedings in time, supports the case that his ADHD and depression influenced his behaviour. When referring to Mr Tims’ evidence, the EAT held that his demeanour and evidence were “strikingly corroborative” of what the written evidence conveyed about the nature of his condition.

The EAT held that on the balance of probabilities, Mr Tims’ impairments, interacting with the various unfolding business and personal circumstances, were a material and substantial part of the explanation for why the appeal was not instituted in time

Finally, the delay in lodging the appeal was only one day and was therefore not unreasonably late.

The EAT held that Mr Tims’ impairments substantially influenced the delay in instituting the appeal and the extension of time was granted.

Comment on time extensions for tribunals

When considering missed deadlines due to poor mental health, the courts will apply the guidance in J v K. Provided the evidence supports and explains the reason for the delay, it could provide the grounds for an extension of time. However, each case will be determined on its own facts. The EAT’s reasoning in O’Daly is likely to be restricted in its application to a relatively small number of cases where, for example, there are extraordinary reasons for a short delay and there is persuasive medical evidence to explain the delay.

The case highlights an important practical point for employers. Specifically, the need to have clear procedures in place to deal with claims from the moment they are received and to provide alternative points of contact in case of someone’s sickness or absence on holidays. It may also be appropriate for more than one person to have the authority to instruct solicitors. Mr Tims was the CEO and majority shareholder who instructed the solicitors. If a deputy or colleague had also been appointed the appeal may have been instituted in time saving considerable management time and legal fees.