Although the rules governing time limits for submission of appeals are strictly governed by legislation, the Employment Appeal Tribunal (EAT) has held in MTN1 v O’Daly that the effect of the CEO’s mental impairments had “materially and substantially influenced” the reason why he had put the appeal in late. It, therefore, allowed the extension of time that he had requested.
Mr O’Daly, the company’s operations director, was dismissed by the chief executive officer (CEO), Mike Tims, in September 2019. Mr O’Daly then lodged tribunal claims of unfair and wrongful dismissal in January 2020.
The forms were sent by the tribunal to the company’s registered address on 6 February, along with notification that it had until 5 March to respond. As no response was received, the tribunal ruled in favour of Mr O’Daly in April 2020, awarding him just over £98,000 in respect of both claims.
Mr O’Daly’s solicitors then emailed the company on 15 May 2020 referring to the tribunal’s “April judgment” and asking how the company intended to pay. Mr Tims said that he had no idea that Mr O’Daly had lodged a claim, nor that the tribunal had found in his favour. In his defence, he explained that the company’s office had closed on 17 March 2020 in anticipation of the national lockdown; that he was immersed in dealing with a cash flow crisis and the implications of the unfolding pandemic; and was also affected by other serious personal circumstances as well as a number of mental impairments including ADHD and depression.
Although the deadline for appealing the judgment was 4pm on 8 June 2020, Mr Tims did not submit it until almost 9pm that evening, meaning that it was not received until the next morning. On 8 September 2020, the company’s solicitors wrote to the tribunal applying for a reconsideration of the April 2020 decision as well as an extension of time to enter a response, arguing that the delay was due to the acute mental health problems suffered by Mr Tims at the time.
Both applications were refused at a hearing on 16 July 2021 and the company appealed, arguing that the appeal submission was only a few hours late; that Mr Tims had not been aware of the existence of the tribunal claim until 15 May 2020; and that he was suffering from the severe impact of his mental impairments, as the medical evidence made clear. Due to the phenomenon of “hyperfocus” (the tendency to focus on one issue only to the exclusion of all others), he was simply unable to give his attention to the claim and appeal despite the best efforts of his solicitors to get him to do so.
Mr O’Daly resisted the application, pointing out that the company was a highly profitable business, which could call on solicitors for assistance. Even if Mr Tims was incapable of dealing with his claim, other members of his team could have ensured that it was submitted on time.
Relying on the guidance in J v K (weekly LELR 528), the EAT accepted the specific medical evidence presented by Mr Tims as to the effect of his mental impairments on his ability to lodge the appeal on time. In particular, it accepted that he was so hyper-focussed on the crisis affecting his business and preoccupied with distressing personal matters, that, despite his solicitor’s best efforts, he could not be distracted away from them.
It concluded, on the balance of probabilities, that Mr Tims’ “impairments, specifically the ADHD, but also the associated depression, materially and substantially influenced and explain why this appeal was put in late”. It, therefore, granted the extension.