Out of time appeal to EAT vs submitted on time but missing information

In Ridley and others v HB Kirtley t/a Queen’s Court Business Centre, three Claimants wished to appeal against decisions taken by the employment tribunal. Appeals to the EAT are governed by the Employment Appeal Tribunal Rules 1993. In all three cases, the Claimants lodged a notice of appeal within the required 42 days, but all three failed to attach a copy of the grounds of resistance as required under rule 3(1). The Claimants were told by the EAT about the missing document. Each then sent the document to the EAT, but after the 42-day time limit. They applied for an extension of time. In each case, the Registrar refused the application and a further appeal to a judge was also refused. 

The Claimants appealed the EAT’s decisions on extending time to the Court of Appeal. 

The Court held that the EAT’s discretion under rule 37(1) to extend time is a broad one. Mummery J had set out guidelines on exercising this discretion in United Arab Emirates v Abdelghafar - including that time limits should only be relaxed in ‘rare and exceptional cases’ where there was ‘a good excuse’ for default. The Court reviewed these guidelines and stressed that they were not rigid rules. They were intended to guide the exercise of a very wide discretion, not to dictate the outcome of that exercise. In particular, the Court noted that a mistake could be a good reason for a delay.

The Court further held that the exercise of the discretion should involve recognising a material distinction between the case of an appellant who lodges a notice of appeal and nearly all of the documents required by rule 3(1) inside the time limit, and an appellant who lodges nothing until after the time limit has passed. The appeals were allowed and all three cases were remitted to the EAT to reconsider extension of time. 

NB: The changes made last year to rule 3(1) (removing the requirement to file a copy of the claim and response with the notice of appeal) and rule 37(5) (stating that if a minor error is made in submitting the required documents, and the error is rectified, then time may be extended if the EAT considers it ‘just’ to do so in all the circumstances) had not taken effect at the relevant time for the appeals in these cases so did not apply.

Thanks to Daniel Barnett